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2022 (5) TMI 434 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHITermination of Leave and License Agreement - refund of security deposit to the Respondent after deducting the license fee payable - HELD THAT:- It is clearly stipulated that if the amount is not paid within 30 days, the Appellant will have the right to terminate the Leave and License Agreement. Thus, the Appellant by the notice reserved their right to terminate the Leave and License Agreement and by the said Notice has not expressly terminated the Leave and License Agreement. Further Notice dated 28.11.2019, by which the Respondent was asked to vacate the premises by 31.12.2019 can also not be said to be the notice terminating the License Agreement. Learned Counsel for the Respondent has relied on Clause 19.5 to submits that since Notice dated 30.04.2019 gave a cure period of 30 days to the Respondent to deposit the payment which having not been done, there shall be automatic termination of Leave and License Agreement. In the present case, from the facts and materials on record, it is clear that at no point of time, the Respondent handed over possession of the premises to the Appellant or asked the Appellant to take possession of the premises - Admittedly, the monthly rent of the premises is Rs.28 Lakhs and odd. No amount has been paid towards the license fee after March, 2019 on the ground that security amount of Rs.82 lakhs and odd is payable by the Appellant. The Respondent is continuing in the premises occupying the same for last more than three years whereas the security lying with the Appellant at best is avail to cover the license fee for about three months only. The Respondent has no right or entitlement to continue in the premises on the ground that security deposit has not yet been refunded without giving any opportunity to the licensor to determine whether as to any security is refundable or not. When we read Clauses 21.1, 21.2 and 21.3 conjointly, it is clear that the licensee is under obligation to handover the possession within 30 days of the date of termination and licensor has time of 30 days thereafter to refund the security deposit. When the licensee has not handed over possession, there is no occasion to determine whether any amount is to be given back to the licensee or not. Present is a case where the Resolution Professional has continued in the possession of the premises and exposed the Corporate Debtor for liabilities to pay license fees during the CIRP period which could be CIRP costs. The mere fact that CIRP has triggered and Moratorium has been imposed does not absolved the Corporate Debtor to pay for premises and facilities which is being enjoyed by the Corporate Debtor during the CIRP period. Sufficient ground has been made out by the Appellant in this Application to treat the license fees of the premises to be treated as CIRP costs - the Resolution Plan with regard to Corporate Debtor has been approved by the Adjudicating Authority by order dated 22.06.2021. By approval of the Resolution Plan, the CIRP period has come to an end and after 21.06.2021 still the premises are in occupation of the monitoring professional. No direction in this Appeal can be given for payment of leave and license fees to the Appellant during the CIRP period even though we are satisfied that the Appellant was entitled for determination that monthly fees payable to the Appellant under the Service Agreement should have been treated as part of the CIRP costs - the impugned order dated 18.03.2021 is set aside. It is held that no monthly fees shall be payable to the Appellant during the CIRP period - Respondent is directed to handover the vacant possession of the premises within 15 days from today - appeal disposed off.
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