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2022 (9) TMI 628 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - failure on the part of the Corporate Debtor to refund the refundable security deposit amount relating to sub-licensing transaction in immovable property - Operational Debt or not - Operational Creditor - existence of debt and dispute or not - HELD THAT:- The Operational Creditor's claim is based on the fact that a sum of Rs. 27,10,656/- was paid by the Operational Creditor to the Corporate Debtor as 50% refundable security deposit for sub-licensing office space at tower -2, 702/B Konnectus Bhavbhuti Marg, New Delhi in terms of MOU dated 30th March 2017, which could not be acted upon due to failure on the part of Corporate Debtor to hand over the said office space on account of termination of Concession Agreement in their favour by DMRC. It is advantageous at this juncture to refer to the recent decision of the Hon'ble NCLAT in the matter of VIBRUS HOMES PVT. LTD. VERSUS ASHIMARA HOUSING PVT. LTD. & ANR. [2022 (4) TMI 1448 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI] wherein it has been laid down that an interest free security deposit received in respect of a lease or licence transaction with regard to an immovable property will qualify as an operational debt under IBC. On consideration of submissions of the Operational Creditor for the claims towards the advance payment made as Security Deposits, it appears that the same shall also fall within the ambit of the definition of operational debt and the applicant will qualify as an Operational Creditor in terms of section 5(20) of the Code - Since the Corporate Debtor has chosen not to avail the due and sufficient opportunity of being heard as granted on various dates, the averments of the applicant stating that there is a 'debt' which the corporate debtor was liable to pay but failed to do so, remain unrebutted. Therefore, this Adjudicating Authority has no other option but to admit the Corporate Debtor into CIRP under the provisions of the Code. Application admitted - moratorium declared.
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