TMI Blog2018 (10) TMI 1738X X X X Extracts X X X X X X X X Extracts X X X X ..... ame. Hence, the CIRP has to be admitted. Application admitted - moratorium declared. - CA(IB) No. 108/KB/2018, CA(IB) No. 119/KB/2018 - - - Dated:- 5-10-2018 - Madan B. Gosavi, JUDICIAL MEMBER For the Operational Creditor : Anirban Ray, Micky Choudhury And S. Baid, Advs. For the Corporate Debtor : Jay Saha, Sr. Adv., Suman Sengupta, Dwaipayan Basu Mallick And Soumya Ray ORDER 1. This petition under section 9 of the Insolvency Bankruptcy Code, 2016 (in short, I B Code) is filed by one Avijit Das-Power of Attorney-Holder of the Operational Creditor, Smt. Sarla Tantia against M/s. Nadia Health Care Private Ltd., the Corporate Debtor to start Corporate Insolvency Resolution Process (in shor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. I perused the pleadings and record. I heard at length the Ld. Advocate for the Operational Creditor and the Ld. Counsel for the Corporate Debtor. The following points of controversy are raised for my determination. (a) Whether power of attorney holder of Operational Creditor can file this petition? (b) Whether the recovery of arrears of rent can be claimed as operational debt within the meaning of section 3(11) of the I B Code? (c) Whether the amount claimed is ascertained sum of money? 5. It is not in dispute that the claim is filed for the recovery of arrears of rent. It has to be seen whether the arrears of rent could be the operational debt? Ld. Counsel for the Corporate Debtor submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated under section 5(21) of I B Code. No further analysis is required at all. Moreover, the Ld. Counsel for the Operational Creditor brought to my notice the provisions of section 2 of Central Goods Services Tax Act, 2017. Section 2(a) of the Act states that, any lease, tenancy, easement, licence to occupy land is a supply of services; Section 2(b) of the Act further makes clear that, any lease or letting out of the building including a commercial, industrial or residential complex for business or commerce, either wholly or partly, is a supply of services. 8. In view of this, it has to be held that, letting out premises on rent is nothing but providing the services. Section 5(21) of the IB Code defines the operational debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Settlement, the amount claimed herein appears to be due from the Corporate Debtor. Hence, I hold that the amount claimed herein is ascertained sum of money. The Corporate Debtor cannot raise such defence at this stage. 10. The Corporate Debtor also challenged maintainability of this proceeding on the ground that the petition is not filed by the Operational Creditor herself, but it is filed by her attorney holder. Ld. Counsel for the Corporate Debtor brought to my notice the Ruling of the Hon'ble NCLAT in the case of Palogix Infrastructure (P.) Ltd. v. ICICI Bank Ltd. [(2017) SCC OnLine NCLAT 266 in Company Appeal No. 30 of 2017] (NCLT - New Delhi). The question before the Hon'ble NCLAT for consideration was whether the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t him with the Board or Insolvency Professional Agency of Institute of Cost Accountants of India. 12. Considering the facts of the case, the provisions of law and various rulings as relied on by the parties to the proceeding, I have come to the conclusion that this petition is maintainable. It is seen from the record that the Operational Creditor has complied with the provisions of section 9(3)(b) and 9(3)(c) of the I B Code. Admittedly, the operational debt is claimed and the Corporate Debtor is unable to pay the same. Hence, the CIRP has to be admitted. Therefore, I allow this petition and proceed to pass the following order: ORDER The petition filed by the Operational Creditor under Section 9 of the Insolvenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. (iv) The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated, suspended, or interrupted during moratorium period. (v) The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (vi) The order of moratorium shall have effect from the date of such order till the completion of the corporate insolvency resolution process. (vii) Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X
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