9911796707
TMI Blog2021 (1) TMI 1208X X X X Extracts X X X X X X X X Extracts X X X X ..... the Company in terms of Lease Deed dated 28.03.2017 entered into between the Company and Respondent No. 01 with respect to the Demised Premises, as defined in the Lease Deed. Respondent No. 02 is the maintenance service provider at the aforementioned premises in terms of the Maintenance and Services Agreement dated 06.03.2017 entered into between the Company and Respondent No. 02. This Maintenance Agreement was with respect to the Demised Premises, as defined in the Lease Deed. As per Clause 7.1 of the Maintenance Agreement, the Maintenance Agreement is coterminous with the Lease Deed. 3. Section 7 petition was filed by Rattan India Finance Limited (Financial Creditor) before this Tribunal which was admitted vide an order dated 22.10.2019 of this Tribunal whereby the Corporate Insolvency Resolution Process against the Corporate Debtor was initiated. Mr. Alok Kumar Agarwal was appointed as the Interim Resolution Professional (IRP) of the Corporate Debtor who was later on replaced by the applicant herein as the Resolution Professional of the Company vide an order dated 10.01.2020 of this Tribunal. 4. Subsequent to his appointment as the RP, the applicant on 13.02.2020 issues ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng dues were settled in totality. Again, the applicant addressed an email dated 17.07.2020 to the Respondents intimating them that the applicant's team had, with great difficulty, managed to arrange for packers and movers to move the Company's assets out of the Premises and further requested respondents' cooperation and support towards the same. To this, the respondents responded vide and email dated 20.07.2020 clarifying that only upon receipt of payment would they be able to process the Applicant's request for shifting and removing the important assets of the Company. Again on 08.07.2020 the packers and movers were not permitted to enter into the premises, thereby thwarting the Company's attempt to vacate the premises. 8. The applicant submitted that the Respondents have filed Claim Forms with the Applicant where they have not claimed any credit for the Security Deposit of approximately Rs. 2.32 Crore falsely alleged to have been appropriated by them. Therefore, the Respondents' own Claim Form belies their argument that the Security Deposit of approximately Rs. 2.32 Crore has been appropriated by them. The remedy available to the Respondents to challenge the admission of their C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and statements made by the applicant in toto. 11. The Respondents have denied the contention of the applicant that the Respondents have obstructed or refused the entry of the Corporate Debtor's manpower to the Demised Premises. The allegation made by the applicant vide email dated 02.06.2020 is contrary to his own unilateral statements made by him in email dated 23.05.2020 where he has praised the action of the Respondents. Additionally, the fact that the Answering Respondents have never obstructed or refused the entry of the Corporate Debtor's manpower to the Demised Premises is admittedly not denied in the Corporate Debtor's email dated 12.06.2020, issued in response to the Respondent's email dated 03.06.2020. Hence, if the email dated 23.05.2020 and 02.06.2020 are read together, it would be transpired that the allegations in email dated 02.06.2020 are just contrary to the averments in the email dated 23.05.2020 and such allegations are motivated as the Applicant despite being in possession of the property was not making payment of rent and maintenance despite repeated assurances. 12. The counsel for the Respondents also stated that the applicant has admitted the payment of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the tenants... 4.....The payment of rent depends on a contractual arrangement between the tenant and the landlord. The prayer in the petition in essence asks landlords to forgo the consideration for their premises already retained by the tenant. The powers/discretion for waiving of such consideration (rent) vests first with the landlords, who are contractually entitled to the same. This Court will be extremely slow in interfering with the contractual terms which have been entered into by the parties to the contract.... It ought to be kept in mind that Court cannot do charity at the cost of others. Charity beyond law is an injustice to others. If the landlord is entitled to receive the rent/consideration in accordance with law as per the contractual agreement entered between the parties concerned, then, the Court cannot, by a general order of the nature sought by the petitioner, waive such amount... 9. The petition proceeds on the presumption that tenants alone are suffering from financial hardship, or from the economic consequences of the pandemic and consequent lockdown. However, it ought to be kept in mind that even the landlords can be financially dependent on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other. We have heard the arguments advanced by them in detail and we are passing the following order: 17. It is clear from the facts of the case and undisputed by the Respondents that they have repeatedly prevented the Applicant from accessing and removing the assets and records of the Corporate Debtor located at the office premises of the respondent company. This action on the part of the Respondents is not correct as there is no provision of law which entitles the Respondents to hold on to the assets and records of the Company and to prevent the Applicant from accessing and removing the same. Rather it is contravening the provisions of the Code which empowers the RP to take into possession all the assets of the Corporate Debtor. 18. Furthermore, we believe that the Respondents are seeking several directions against the RP vide their reply filed in this application which itself is filed by the RP seeking recourse against the land lords. If they had grievances against the RP, they should have filed appropriate proceedings against the RP either before this Tribunal or before any other competent authority to seek redressal of their grievances. But they have not filed any applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lords as Operational Creditors. However, in the definition adopted by the Legislature only claims relating to 'Goods and Services' were included within the definition and purview of 'Operational Debt'. ... 22. Therefore, keeping in view, the observations made by the Hon'ble Supreme Court in Para 5.2.1 of Mobilox (Supra), and having regard to the facts of the instant case this Tribunal is of the earnest opinion that the subject lease rentals arising out of use and occupation of a cold storage unit which is for Commercial Purpose is an 'Operational Debt' as envisaged under Section 5 (21) of the Code. Further, in so far as the facts and attendant circumstances of the instant case on hand is concerned, the dues claimed by the First Respondent in the subject matter and issue, squarely falls within the ambit of the definition of 'Operational Debt' as defined under Section 5 (21) of the Code." Also, the Hon'ble Supreme Court of India in the matter of Mobilox Innovations Private Limited V/s. Kirusa Software Private Limited (2018) 1 SCC 353 in Para 5.2.1 has observed as hereunder; "5.2.1 Who can trigger IRP? Here, the code differentiates between financial creditors and operational ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted to seek the assistance of the local police if so needed in vacating the premises. SHO of the concerned area is directed to render police assistance to the RP either on production of copy of this order or at the request made by the RP. 21. We hereby declare that the Lease Deed and Maintenance Agreement is terminated with effect from 15.09.2020 but not excluding the lockdown period from 25.03.2020 to 28.07.2020 as sought by the Applicant because the premises were in possession of the RP/Corporate Debtor during that period and the Respondents are therefore, entitled to be paid. Not doing so will cause prejudice to the rights of the Respondents for no fault of theirs. Therefore, the Respondents are directed to file their claim before the RP for the unpaid rent from 25.03.2020 to 28.07.2020 and not beyond that. Delay if any in filing the claim of the Respondents stands condoned. We direct the above because the RP is bound by the provisions of the Code and thus is not allowed to give preferential treatment over the other claimants. The RP has to collate the claim and then prepare a list as per the criteria under Section 53 of the Code. 22. We also direct that the Termination ..... X X X X Extracts X X X X X X X X Extracts X X X X
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