TMI Blog2018 (7) TMI 1918X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellants are Operational Creditor or not - The appeal is accordingly dismissed. - Company Appeal (AT) (Insolvency) No. 251 of 2017 - - - Dated:- 4-7-2018 - Sudhansu Jyoti Mukhopadhaya, J. For Appellants:- Mr. Sakal Bhushan, Advocate. For Respondent:- Mr. Soumyajit Pani, Ms. Inayat Ahmed and Ms. Rehana Ahmed, Advocates. JUDGMENT Sudhansu Jyoti Mukhopadhaya, The Appellants preferred application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as I B Code ) for initiation of Corporate Insolvency Resolution Process against Divine Infracon Pvt. Ltd. ( Corporate Debtor ). The Adjudicating Authority (National Company Law Tribunal), New Delhi, rejected the application by impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase time period of 15 years, in other words within the lock-in period specified in the agreement. It is also stated that at the time of terminating the same, ₹ 12,62,700/- was due by way of rentals and interest was also due for the defaulted amount @12% per annum which comes to around ₹ 1,95,718.03. In addition to the non-payment of rentals for the period in which the Corporate Debtor' was in occupation of the premises, the Applicant has also put forth a claim w.e.f. 10.4.2016 to 9.1.2027 in relation to monthly rentals for the unexpired period of lock-in to the extent of ₹ 2,60,05,539.74 which it is claimed is also payable along with the interest at 12% p.a. The aggregate amount thereby it is claimed by the Operationa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce no attributable dispute has been detailed as required under the provisions of the Arbitration and Conciliation Act, 1996. 6. Learned counsel appearing on behalf of the Appellants referred to the agreement dated 16th August 2014, which came into effect from 10th January, 2012, to suggest that the Appellants are Operational Creditor . It was submitted that the Appellants has leased the premises for commercial purposes which come within the meaning of services for the purpose of sub-section (21) of Section 5 of the I B Code . 7. It was also submitted that if a premise is leased for commercial purpose, the land-lord on collection is required to pay Service Tax, but in view of exemption of payment of Service Tax upto ₹ 10 lakh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsultation between the Parties. Thereafter, if the Parties failed to reach an amicable settlement on any or all disputes or differences arising out of or in connection with this Agreement or its performance, such disputes or differences shall be submitted to Arbitration for final adjudication. Arbitration proceedings shall be concluded by a Sole Arbitrator to be mutually decided by the Parties. Such arbitration shall be in accordance with the Indian (Arbitration and Conciliation) Act, 1996 ( Arbitration Act ) and the rules made there under and / or any amendments thereof. The arbitration proceedings shall be held in English and at New Delhi. Decision of the Arbitrator shall be final and binding upon the parties. The Courts at D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of a particular disputed commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent. 10. In view of the fact that the arbitral proceedings commence since the request made under Section 21 of the Arbitration and Conciliation Act, 1996, we hold that on commencement of arbitral proceedings, it is rightly pleaded that there is an existence of dispute and therefore, the petition under Section 9 was not maintainable. 11. In view of the aforesaid finding, we are not deciding the question as to whether the Appellants are Operational Creditor or not. The appeal is accordingly dismissed. However, in the facts and circumstances of the case, there shall be no order as to cost. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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