TMI Blog2019 (3) TMI 1664X X X X Extracts X X X X X X X X Extracts X X X X ..... ditor . Since the alleged debt is not Operational Debt and Petitioner is not the Operational Creditor . Therefore, the Petition is not maintainable under Section 9 of IBC, 2016. Hence, the Petition deserves to be rejected on this ground. Petition dismissed as not maintainable. - C.P. No. 567/IB/2018 - - - Dated:- 11-3-2019 - Shri V. P. Singh, Member (Judicial) And Shri Ravikumar Duraisamy, Member (Technical) For The Operational Creditor : Mr Mahesh Athavle a/w. Mrs. Anagha Anasingaraju, Practising Company Secretary For The corporate Debtor : Mr Rohit Totala, Advocate ORDER 1. It is a Company Petition filed u/s 9 of Insolvency Bankruptcy Code by the Operational Creditor M/s. Citicare Super Specialty Hospital against the Corporate Debtor Vighnaharta Health Visionaries Pvt.Ltd., stating that the Corporate Debtor defaulted in making payment of ₹3,41,30,397.50/-, given the same, this Company Petition is filed for initiation of Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor. 2. The Counsel for the Operational Creditor states that the Oper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er obligation to pay for insurance premium during the lease period. However, Corporate Debtor failed to comply with the same. Hence, the Operational Creditor has paid the Insurance Premium. 6. The Counsel for the Operational Creditor had requested for the making payments, but the Corporate Debtor did not make the payment. The Operational Creditor had issued Legal notice dated 29.06.2017 and after that, issued Demand Notice dated 28.02.2018 which was duly replied by the Corporate Debtor on 08.03.2018 wherein the Corporate Debtor merely denied his liability without any proof. 7. The Ld. Counsel for the Corporate Debtor states that the present petition is based on claim towards alleged outstanding rent/ licensee fee payable and is not in respect of any goods or services and thus the alleged claim for outstanding rent/ license fees does not come within the meaning of Operational Creditor as defined under sub-section 20 read with sub-section 21 of section 5 of the Insolvency and Bankruptcy Code, 2016. In these circumstances, the Petition is not maintainable and liable to be dismissed. 8. The Counsel for the Corporate Debtor also ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Ld. counsel for Corporate Debtor, relied upon Mobilox Innovation Pvt. Ltd. v. Kirusa Software Pvt. Ltd. , Under I B Code, it need not be seen whether the company is unable to make payment or that the relief sought has bonafide or not. The only criterion to be looked into is as to whether debt and default are in existence as on the date of filing case. To see how this clause existence of dispute plays out, we have to read the judgment of Hon ble Supreme Court delivered in Mobilox Innovations Private Limited v. Kirusa Software Private Limited (September 21st 2017) as to this; the para relevant is as below: 40. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the existence of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. it should be capable of being treated as an Operational debt and such an operational debt must be owed by the Corporate Debtor to a credit who can then be considered as an Operational Creditor as defined under Section 5(2) of IBC, 2016. 18. It has been further held that as recently as 28.9.2017, this Tribunal in the matter of Divine Infracon Pvt Ltd in IB-209/ND/2017 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 cannot be considered as an Operational Debt. 19. It is pertinent to mention that appeal filed against the order mentioned above passed in Jindal Steel supra, and it was decided by NCLAT in Company Appeal (AT)(Insolvency) No.288 of 2017 that: ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
