TMI Blog2022 (4) TMI 1111X X X X Extracts X X X X X X X X Extracts X X X X ..... IBC, 2016 shows that during the moratorium, the supply of essential goods or services to the Corporate Debtor as may be specified shall not be terminated or suspended or interrupted - Section 14(1)(d) restrain the owner or lessor from recovery of any property where such property is occupied or is in possession of the Corporate Debtor. But as per Explanation of Section 14(1) of the IBC, this provision is subject to the condition that there is no default in payment of current dues arising for the use or continuation of the license, permit, registration, quota, concession, clearance or a similar grant or right during the moratorium period. Admittedly, to enjoy the lease granted by NOIDA Authority to the corporate debtor, lease premium and lease rent are to be paid for during the period 11.10.2019 to 30.06.2021 as per the letter dt. 04.06.2021, sent by the Applicant to the Resolution Professional. Therefore, even if we accept the contention of the Resolution Professional that the lease rent does not fall under the categories of supplies to the essential gods and services, but in terms of Explanation of Section 14(1) of the IBC 2016 added w.e.f. 28/12/2019, the applicant is entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter the balance 90% premium of the plot along with interest was to be paid within next 8 years. In case of default in depositing installment or any payment, interest at the rate 14% compounded half yearly was require to be paid. iii. That the Corporate Debtor, vide letters dated 06.07.2015 and 07.08.2015, had made a request for rescheduling of overdue payment. Against the said request, the Applicant vide letter dt. 31.12.2015, sent a reply stating therein that in case, re-schedulement needs to be approved, sum of ₹ 2,40,19,885.00 needs to be deposited. Further, 15% of the total due along with up to date lease rent with interest has to be paid by the corporate debtor. iv. That the Corporate Debtor had again made a request for rescheduling vide letters dt. 28.01.2016 and 09.11.2016. The Applicant again vide letter dt. 02.12.2016 sent a reply stating therein that in case, the Corporate Debtor wishes to avail the re-schedulement of the total dues of ₹ 18,18,11,200.00 then total amount of ₹ 3,65,81,580.00 is required to be deposited upfront by the Corporate Debtor. v. That in terms of the aforesaid, the upfront amount was deposited by the Corporate Debto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application. It is further submitted that the Resolution Professional has been managing the affairs of the Corporate Debtor as a going concern. 5. That in the course of arguments, it is submitted on behalf of the Respondent that in view of the moratorium imposed in terms of Section 14 of the Code, the said amount is not payable. It is submitted that as per Regulation 31(b) of IBBI (Insolvency Resolution Process For Corporate Persons) Regulations, 2016 ( Regulations ), the said amount even do not form part of the CIRP cost, which is to be paid. 6. The Respondent has filed written submissions and has stated almost same statement as stated in the reply except the following:- i. The present application is not maintainable in view of Section 14 of the Code. No proceedings can be instituted against the Corporate Debtor during the moratorium period. Further, reliance has been placed upon the decision of the Hon'ble Supreme Court in the matter of P. Mohanraj Ors. Vs. M/s. Shah Brothers Ispat Pvt. Ltd. in Civil Appeal No. 10355 of 2018. ii. That in terms of regulation 31, 32, and 34 of the Regulations, the Resolution Professional can discharge the payment to any third ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Respondent is that the said amounts do not come under the essential supplies. Therefore, at this juncture, we would like to refer to the relevant regulations 31, 32, 33, 34 and 34A. 12. On conjoint reading of the said regulations, it is seen that as per Regulation 31, the Insolvency Resolution Process Cost under Section 5(3)(e) includes the item referred to from (a) to of Regulation 31. We further notice that as per Regulation 31(a), the amount due to supplies of essential goods and services under Regulation 32 would be included as Insolvency Resolution Process Cost and according to Regulation 32, only Electricity, Water, Telecommunication Services and Information Technology Services, comes under the category of essential supplies and the IRP or the RP is under obligation to disclose the itemwise Resolution Process Cost. That is the reason, the Applicant has claimed the amount which is referred to in the letters shall be treated as service rendered under Regulation 32, and include that amount as Insolvency Resolution Process Cost. 13. At this juncture, we would also like to refer Section 25 of the IBC and the same is reproduced below:- Section 25: Duties of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titled to get it. Whereas as the Respondent claimed protection under Section 14 of the IBC, therefore, we would also like to refer to Section 14 of the IBC and the same is reproduced below:- Section 14: Moratorium. (1) Subject to provisions of sub-sections (2) and (3), on the insolvency commencement date, the Adjudicating Authority shall by order declare moratorium for prohibiting all of the following, namely:-- (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the moratorium, the supply of essential goods or services to the Corporate Debtor as may be specified shall not be terminated or suspended or interrupted. 16. At this juncture, we would also like to refer to Section 14(1)(d) which restrain the owner or lessor from recovery of any property where such property is occupied or is in possession of the Corporate Debtor. But as per Explanation of Section 14(1) of the IBC, this provision is subject to the condition that there is no default in payment of current dues arising for the use or continuation of the license, permit, registration, quota, concession, clearance or a similar grant or right during the moratorium period. 17. Admittedly, to enjoy the lease granted by NOIDA Authority to the corporate debtor, lease premium and lease rent are to be paid for during the period 11.10.2019 to 30.06.2021 as per the letter dt. 04.06.2021, sent by the Applicant to the Resolution Professional. Therefore, even if we accept the contention of the Resolution Professional that the lease rent does not fall under the categories of supplies to the essential gods and services, but in terms of Explanation of Section 14(1) of the IBC 2016 added w.e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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