TMI Blog2017 (11) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... TRIBUNAL, NEW DELHI] has held after a detailed discussion that in relation to transaction of immovable property the same cannot be considered as a transaction falling under the term 'operation' and 'Operational Debt' unless such a transaction having a correlation of direct input to the output produced or supplied by the Corporate Debtor and hence we do not have any hesitation looking at any way in holding that the petitioner will not fall under the definition of Operational Creditor and the claim which is sought to be made can not be considered as an Operational Debt. Further, from the records it is also seen that by sending the notice of dispute dated 3.5.2017 by the Corporate Debtor in relation to the notice of demand dated 31.3.2017 as sent by the Petitioner, a dispute has been projected on the ground that a portion of the properties leased to the Operational Creditor was not given in time by it even after its termination which has occasioned loss of use of the property by the Corporate Debtor giving rise to financial loss to it. As held by the Hon'ble Supreme Court of India in Mobilox Innovations Private Limited v. Kirusa Software Private Limited [2017 (9) TMI 1270 - SU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on 30.9.2012 and in the circumstances due to the termination of lease as narrated above, the Corporate Debtor is liable to refund the sums paid as security deposit given at the time of entering into the respective leases by the Operational Creditor. 2. Subsequent to the termination of the lease, the Operational Creditor avers that since 2012 it has repeatedly been approaching the Corporate Debtor to refund the security deposit however, without much avail. On 22.7.2014 finally the parties to the Petition it is averred after numerous deliberations entered into a Memorandum of Settlement (MoS) wherein it was agreed between the parties that the Corporate Debtor will refund a sum of ₹ 1.50 crores to the Operational Creditor in 3 instalments (i.e.) ₹ 50.00 lakhs to be paid at the time of signing the MoS and the balance amount to be paid in 2 equal instalments of ₹ 50.00 lakhs each within a period of 45 days commencing from the date of signing the MoS. The Corporate Debtor it is averred by the Petitioner that while paid a sum of ₹ 50.00 lakhs at the time of signing the MoS, but failed to pay the balance amount in a sum of ₹ 1.00 crore as agreed under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 8.8.2017. Perusal of the reply as filed by the Corporate Debtor shows that the following grounds have been taken to challenge the maintainability of the Petition: (i) The amount claimed to be in default by the Operational Creditor does not fall within the purview of operational debt as defined under Section 5(21) of IBC,2016. (ii) Since the amount claimed in itself cannot be categorized as Operational Debt , the applicant / petitioner cannot claim itself to be an Operational Creditor within the meaning of Section 5(20) of IBC,2016 as the amount which is claimed to be in default does not arise in relation to amount payable towards supply of goods or rendering services or in connection with the employment or in relation to statutory dues as prescribed under Section 5(21) of IBC,2016 and hence the Petitioner is not entitled to maintain the Petition as an Operational Creditor. (iii) In addition to the above, the Corporate Debtor has also contended that there is a pre-existing dispute as between the Operational Creditor and the Corporate Debtor and the adjudication of the dispute cannot be done in a summary manner as it requires leading of evidence and a trial to be condu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions. Thus, the wholesale vendor of spare parts whose spark plugs are kept in inventory by the car mechanic and who gets paid only after the spark plugs are sold is an operational creditor. Similarly, the lessor that the entity rents out space from is an operational creditor to whom the entity owes monthly rent on a three year lease, The Code also provides for cases where a creditor has both a solely financial transaction as well as an operational transaction with the entity. In such a case, the creditor can be considered a financial creditor to the extent of the financial debt and an operational creditor to the extent of the operational debt. 8. Ld. Counsel for the Petitioner/Operational Creditor relies on the above paragraph as extracted to reinforce that the transaction of lease of immovable property will fall within the term of services also under section 5(21) of IBC,2016. 9. We have carefully considered the rival pleadings as well as the submissions made by the parties through their Ld. Counsels. It is evident from the documents filed that in relation to the lease agreement dated 13.5.2009 as well as 1.9.2009 the second and third floors and subsequently the first floo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same cannot be considered as a transaction falling under the term 'operation' and 'Operational Debt' unless such a transaction having a correlation of direct input to the output produced or supplied by the Corporate Debtor and hence we do not have any hesitation looking at any way in holding that the petitioner will not fall under the definition of Operational Creditor and the claim which is sought to be made can not be considered as an Operational Debt. 11. Further, from the records it is also seen that by sending the notice of dispute dated 3.5.2017 by the Corporate Debtor in relation to the notice of demand dated 31.3.2017 as sent by the Petitioner, a dispute has been projected on the ground that a portion of the properties leased to the Operational Creditor was not given in time by it even after its termination which has occasioned loss of use of the property by the Corporate Debtor giving rise to financial loss to it. As held by the Hon'ble Supreme Court of India in Mobilox Innovations Private Limited v. Kirusa Software Private Limited on September 21st, 2017, it is not necessary that a claim of dispute as raised by the Corporate Debtor will ult ..... X X X X Extracts X X X X X X X X Extracts X X X X
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