TMI Blog2019 (4) TMI 939X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant and the respondent in respect of the area in use by the respondent. It is a circumstance strengthening that there was a mutual understanding for reduction of the area in use by the respondent. The respondent being established per-existing dispute comes under Section 5(6) of the Code, an application of this nature is not found maintainable - this petition is liable to be rejected. - C.P. (IB) 335/KB/2018 - - - Dated:- 23-7-2018 - SHRI JINAN K.R., MEMBER (J) For The Applicant : Sanjay Kumar Baid, Adv. and M. Chowldhury, Adv. For The Respondent : . Jishnu Saha, Sr. Adv. and Ms. Sulagna Mukherjee, ORDER 1. This is an application filed by Sarala Tantia applicant/operational creditor under Section 9 of the Insolvency and Bankruptcy Code, 2016 (in short, I B Code) for initiating Corporate Insolvency Resolution Process (in short, CIRP) against the respondent/corporate debtor, Ramaanil Hotels Resorts Private Limited alleging that an amount of ₹ 37,14,333/- with interest of ₹ 3,81,962/- calculated @ 18% per annum from the due date till 31/12/2017 aggregating to a sum of ₹ 40,96,295/- is due from the corporate debtor. Despite dema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disciplinary proceedings is pending against Shri Hrikesh Dasgupta. Upon the said contentions the applicant prays for admitting the claim. 4. The respondent entered appearance and filed reply affidavit in opposition contending in brief is the following :- 5. Petition is not maintainable either in fact or in law. The petition suffers from suppression of material facts. There is pre-exiting dispute with regard to the claim of arrears of rent as demanded by the applicant. The dispute covered by the instant application is in the nature of rent dispute which is amenable to the exclusive jurisdiction of a Civil Court under the provisions of the West Bengal Premises Tenancy Act. The Licence Agreement is being executed for a period of 9 years with a clause of further renewal for another period of 9 years. It is a compulsorily registrable deed u/ss. 17 and 49 of the Registration Act and, therefore, unless and until the Stamp Duty and penalty is paid the Deed is inadmissible in evidence. 6. The respondent further submits that the License Deed was procured by fraud and misrepresentation inasmuch as respondent was given an impression that the demised property measuring 2,281 Sqft. Whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecurity deposit on ₹ 13,73,134/- and that amount is also holding by the applicant. The applicant disconnected the electricity and water supply to the rented portion and filed a criminal complaint before the Executive Magistrate. Therefore, the respondent suffered damages for which the applicant is liable to compensate the respondent. The respondent also contends that the claim of the applicant is not an operational debt and, therefore, the application is liable to be rejected with costs to the respondents. 8. Heard both sides, perused the records and the citation referred to on the side of the applicant and on the side of the respondent. Upon hearing the arguments and consideration of the contentions raise on both sides the points that arise for consideration are the following:- 1) Whether the applicant is an operational creditor and the amount claimed is an operational debt? 2) Whether there arises bona fide dispute in respect of the claim of arrears of rent as alleged? 3) Reliefs and costs. 9. The applicant herein is a landlady who licensed out a portion of the 3rd floor allegedly measuring super built area of 2,281 Sqft. on executing a License Ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perational creditors are those whose liability from the entity comes from a transaction on operations. 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. 13. The above referred observation in the above cited judgment squirely applicable in the case in hand. Therefore, the objection that the claim of the applicant is not an operational debt is not sustainable under the provisions of the Code and is found devoid of any merit. Point No.2 14. The applicant here in this case allegedly claimed an amount of ₹ 40,96,295/- as the amount due as arrears of rent inclusive of 18% interest p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that fact was brought to the notice of the applicant and upon measurement, the area was reduced to 1665 Sqft. To strengthen that there was a mutual understanding for reduction of rent limit to the carpet area, the Ld. Sr. Counsel referred to Annexure-A, a copy of letter issued by the applicant to the Urban Development Department of Government of West Bengal, Kolkata dated 04.09.2017. It is an undisputed letter admittedly issued to the Urban Development Department by the applicant for sanction to let out the premises. A reading of the letter shows that the applicant addressed to the authority that the applicant proposed to rent out the place of 1665 Sqft. carpet area on the 3rd floor of M/s. Ramani Hotels and Resorts Private Limited/Corporate Debtor for carrying on business of restaurant. Admittedly, the agreement for license has been executed on 1st day of January 2016 and the letter dated 04.09.2017 i.e. Annexure-A shows that they have not obtained legal permission to rent out the premises from the Urban Development Department and they have proposed to rent out the space limited to 1665 Sqft. carpet area and not 2281 Sqft. of super built up area. No valid explanation forthcomin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opposite party the respondent herein Ld. Executive Magistrate dismissed the application observing that it is a civil dispute and the remedy is to approach before the appropriate forum of the law. Immediately after the dismissal of the complaint, the applicant seen filed the instant case before the Adjudicating Authority. The above said circumstances leads to a conclusion that there exist a bona fide dispute regarding the area of demised premises and the rate of rent liable to be paid by the respondent prior to the date of issuance of demand notice. An understanding in between the applicant and respondent for reduction of rent in proportion of the area in use also cannot be ruled out from the peculiar circumstances brought out in the case in hand. 19. Ld. Sr. Counsel at this juncture referring to the Mobilox Innovations (P.) Ltd. (supra) submits that this adjudicating authority may not go into the merits of the dispute but to see whether there is any further investigation is necessary for coming to the conclusion of the disputes set up on the side of the respondent. He relied upon paragraph No.51 of the above cited decision, it reads as follows: 51. It is clear, therefore, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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