TMI Blog2022 (5) TMI 756X X X X Extracts X X X X X X X X Extracts X X X X ..... the quantum of payment, to the applicant by the respondent. The letter dated 11.01.2018 by the applicant to the respondent mentions charges as commission/brokerage but qualifies it by the statement, to be discussed and mutually agreed . No evidence regarding discussion or mutual agreement has been furnished - From the facts on record, it is clear that there was a pre-existing dispute regarding the quantum of commission payable. In absence of any written agreement, it is difficult to ascertain what was the correct commission payable. The respondent had, even during the hearing, expressed its willingness to pay the brokerage as approved by the State government. From the facts of this case, it is apparent that the genuine and bonafide dispute existed between the parties. The instant application is not maintainable - application dismissed. - Company Petition (IB) No. 682/NCLT/AHM/2019 - - - Dated:- 29-4-2022 - Dr. Deepti Mukesh , Member ( J ) And Ajai Das Mehrotra , Member ( T ) For the Appellant : Arjun Sheth , Advocate For the Respondents : D. R. Mankad , Advocate ORDER 1. This application is filed under Section 9 of Insolvency and Bankruptcy Code, 2016 (he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re shortlisted) and in the same letter it had recorded the terms of commission/brokerage fees as well, which for the sake of easy reference, is as follows: Commission/Brokerage fee amounting to 2 months license fee plus 2% charge on the Security Deposit Amount for the first 33 months of the Leave and License/Lease Agreement. This fee shall be levied again upon expiry of the aforementioned 33 months period and again for further extensions/renewals/the equivalent of the Leave and License/Lease Agreement. iii. On 23 January 2018, pursuant to the inspection of the properties suggested by the Applicant to the Respondent, the Respondent had finalized their interest in the commercial premises at Sanidhya, Plot No. B16, V L Mehta Road, Opp. Jalsa, Juhu, Mumbai 40049 ( the Licensed Premises ). In this connection, a Leave and License Agreement dated 17 July 2018 (hereinafter referred to as L L Agreement ) was entered between the Khandelwal Family (Licensors of the Licensed premises) and the Respondent for a license period of 10 years commencing on 1st July 2018 and expiring on 30 June 2028. It is further submitted that the applicant signed as a witness to the L L Agreement and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk of the applicant, has been filed to show that no amount is received from the Corporate Debtor, in compliance of section 9 (3) (c) of the IB Code, 2016. 7. The Respondent filed an affidavit in reply to the present application, inter alia stating: i. that, the outstanding amount cannot be termed as operational debt as much as that there is no express acceptance of such amount by the Corporate Debtor besides there is no express agreement or contract under which it is agreed by and between the parties to perform obligation and therefore, there is no operational debt . ii. that, the Corporate Debtor is a Government Company fully owned by the Government of Gujarat and the money which is involved in the business of the Company is public money. In absence of any agreement or writings, the applicant cannot treat the respondent as a Corporate Debtor . iii. that, the Corporate Debtor is willing and prepared to pay the amount which is approved by the government and it agreed that services in the form of providing rental premises were taken from the Applicant who orally agreed to accept the charges for the services as may be approved by the State government. However, no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the State Government. The managing director, who is from IAS or IFS cadre, is appointed by the State Government, and all the directors are also appointed by State Government from concerned departments. It is further submitted that the respondent corporation is engaged in the development of Handloom Handicraft of the State and implements various schemes and projects of the State Government, assists different crafts and craftsmen/artisans, therefore the respondent is engaged in business for the public cause and the money involved in all these activities is of public exchequers. ii. after receipt of the unsustainable bill sent by the applicant, the respondent has sent an email dated 29.08.2018, wherein it is informed to the application that the state government sanctioned brokerage to the tune of Rs. 4,87,500/+ GST. Hence, by no stretch of imagination, the email can be construed as an acknowledgement of the amount mentioned by the application. iii. The other submissions made by the Corporate Debtor in his written submissions are reiterated in its reply. 10. The applicant relied upon the following judgements in support of his application mentioned hereunder: a. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is engaged with the public cause and the money involved in all these activities of the public exchequer. 14. We are supported by the judgement of the Hon'ble Supreme Court in the case of Hindustan Construction Company Limited vs Union of India wherein it was widely expressed that the IBC applies to Government Companies. However, such applicability has to be seen in the light of whether the Company is performing any sovereign functions and if the answer is yes, then such a Company cannot be brought under IBC. The Supreme Court was consistent in its application of the principles enunciated in the earlier judgments in determining whether a Government Company is an instrumentality of the State. If a Government Company is an instrumentality of the State, then IBC will not apply to it. At this stage, specifically as the issue of applicability of the Insolvency Bankruptcy Code, 2016 on government companies is pending before the Hon'ble Supreme Court, we are restraining ourselves from expressing any opinion on the issue. 15. On the facts of the case, it is clear that the applicant has rendered services to the respondent. However, apparently there was no agreement regardin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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