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TMI Blog2019 (11) TMI 619X X X X Extracts X X X X X X X X Extracts X X X X ..... te Insolvency Resolution Process (in short, CIRP) by one M/s. Aurora Accessories Pvt. Ltd., stated to be an Operational Creditor (in short, OC) against M/s. Ace Acoustics & Audio Video Solutions Pvt. Ltd., stated to be a Corporate Debtor (in short, CD). 2. In the said application, the petitioner has sought the following reliefs: "(a) allow the present petition and appoint the Interim Resolution Professional (b) pass any other order lo protect the interests of the petitioner and other creditors as the Hon'ble Tribunal may deem fit in the facts and circumstances of the present case" 3. In seeking the above reliefs, the petitioner has, in brief, mentioned the following facts in its application: 3.1 That the CD approached the OC for taki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers from the OC. 3.3 That in such circumstances, the OC was constrained to issue a notice dated 22.10.2018 to the CD requesting the CD to pay an amount of Rs. 38,52,937/- (Rupees Thirty-Eight Lakhs Fifty-Two Thousand Nine Hundred and Thirty-Seven only) which was the amount due as rent and taxes from the CD. However, despite the aforesaid notice, the CD did not make the payment to the OC. According to the OC, the outstanding amount including the principle amount stood at Rs. 49,09,072/- (Rupees forty-nine lakhs nine thousand and seventy-two only) as on 31.01.2019 and such amount has further accrued, in the meantime. In these circumstances, it is stated that the OC was compelled to serve statutory notice dated 04.02.2019 under Section 8 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the claim of the petitioner cannot be considered as an Operational Debt. 4.1 The CD has submitted that the property wherein the petitioner company has rented out the immovable property does not belong to the petitioner company and therefore, the instant petition is liable to be dismissed. It is stated by the CD that no lease was executed by the parties and only a Tenancy agreement was executed on 29.06.2010 by both the petitioner company and the CD for the period from 01.07.2010 to 30.06.2013 and no renewal or new Tenancy Agreement was executed by the parties though there is a provision of renewal in the Tenancy agreement after expiry of every three years with rent enhancement. It is further submitted that a notice dated 04.02.2019 issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 8(2) of the Code of 2016. On the other hand, the Ld. Counsel for the CD stressed that the OC was not an operational creditor as per the Code of 2016. A copy of a decision of the Hon'ble Mumbai Bench of this Tribunal was placed before us in support of this contention. It was also argued that as there was a dispute, involving an amount of Rs. 60,00,000/- regarding the development of the, for this reason also the application needed to be dismissed. 6. We have heard Mr. D. Gogol, Ld. Counsel for the petitioner and also Mr S.P. Das, Ld. Counsel for the respondent, and have perused the submissions made by them, Let us first take up the main issue raised by the CD, the legal issue, namely that the petitioner M/s. Aurora Accessories Pvt. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods; (ii) services; (iii) employment; and (iv) government dues. On the facts of our case, we would be concerned with the first two, that is provision of goods or services. We are of the view that supply of goods or services would mean such supply as is the input for either manufacturing or trading, in a business context, and that there should be a direct nexus between such input and output, for example and illustratively speaking, supply of raw material for manufacturing or goods for trading; or such services as are inextricably linked to the business as in supply of labour or maintenance services. 6.2 The above view was taken by the Hon'ble Delhi Bench of this Tribunal in Parmod Yadav v. Divine Infracon (P.) Ltd. [IB-209/ND/2017, dated 28 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le of being treated as a 'debt' as defined under Section 3(11) of Code of 2016, and finally the 'debt' should fall within the confines of Section 5(21) of Code of 2016 i.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 creditor who can then be considered as an Operational Creditor as defined under Section 5(20) of Code of 2016. On the specific issue of a debt arising from non-payment of lease rent, reference was made to the case of Divine Infracon (P.) Ltd. (Supra), which had held that such a 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. 6.4 The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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