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TMI Blog2022 (7) TMI 881X X X X Extracts X X X X X X X X Extracts X X X X ..... arpur Road, P.O. & P.S. Rabindranagar, Kolkata-700066, (hereinafter referred as the Corporate Debtor). 2. It is submitted that the Operational Creditor is, inter alia, engaged in the business of dealing with storing and handling of containers, logistic services, etc. which are essentially used in shipping Industry and for the purpose of carrying on the said business, the Corporate Debtor had entered into a Memorandum of Understanding on 23rd August, 2017 (MoU), whereby the Corporate Debtor was allowed by the Operational Creditor to use its leasehold land being the Plot No.A-23 containing an area of land measuring about 8128 sq.mtrs. comprised in Brooklyn Shed Nos.12 & 17 and the Plot No.A-24 containing an area of land measuring about 7621 sq.mtrs. comprised in Brooklyn Shed Nos.13 & 18 respectively inter alia on the following terms: a) The Corporate Debtor shall pay a monthly charge to the Operational Creditor @ Rs.8.10 per square feet per month together with GST. The said monthly charge shall automatically be increased or revised at such rate/percentage as the Kolkata Port Trust Authority (who being the original owner of the said property has leased out the same to the Operatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 days from receipt of the said notice. The notice was duly delivered to the Corporate Debtor. Copy of the Postal receipt, Track report and Email has been collectively annexed as Annexure G. 8. The Ld. Counsel appearing on behalf of the Operational Creditor submitted that the Corporate Debtor through the above notice was duly intimated that in the event of failure on the part of the Corporate debtor to pay the outstanding amount so demanded within the stipulated period, the Operational Creditor would initiate Corporate Insolvency Process against the Corporate Debtor under Insolvency and Bankruptcy Code, 2016. It is further submitted that in spite of receiving the said Notice, the Corporate Debtor did not pay any heed and remained silent, which compelled the Operational Creditor to initiate this instant proceedings against the Corporate Debtor on or about 17th December, 2021. 9. It is submitted that after initiation of the instant proceedings against the Corporate Debtor and serving copy of the Application upon the Corporate Debtor, the Corporate Debtor vide its letter dated 12th February, 2022 addressing the Operational Creditor invoked Arbitration suggesting Mr. Amitesh Banerje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r contended that Sometime in November, 2019, the Corporate Debtor's ingress and egress in the land was restricted by the Kolkata Port Trust being the owner thereof. 16. The Learned Counsel representing the Corporate Debtor further contended that the Operational Creditor had compelled the Corporate Debtor to agree to contribute 50% share of the Property Tax by stating falsely that the property tax has been substantially increased. 17. It is further contended that the Operational Creditor did not obtain permission from Kolkata Port Trust for sub-letting the said land and defaulted payment of lease rental to the Kolkata Port Trust and as a result of which, by a letter dated 6th January, 2020 (Annexure A to the Reply), the Corporate Debtor had terminated the MoU and asked refund of the Security Deposit of Rs.1 crore and in order to repay the security deposit, the Operational Creditor has instituted the instant proceedings. 18. The Learned Counsel on behalf of the Corporate Debtor further contended that by a letter dated 17th February, 2022 (Annexure B to the Reply), the Corporate Debtor has invoked Arbitration clause, against which reply has been given by the Operational Creditor vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12.2019 issued by the Corporate Debtor itself shows that there was no dispute between the parties and the Corporate Debtor had agreed to pay 50% of the property tax upon mutual discussion with the Operational Creditor. 25. Learned Counsel of the Operational Creditor further contended that the plea of the Corporate Debtor regarding restricting their access to the land by the Kolkata Port Trust is absolutely a cock & bull story and such plea is absolutely baseless and without any evidence. 26. It is contended that the Corporate Debtor is bound by the terms of the MoU and is not in any way concerned regarding the relationship and or agreement between the Operational Creditor and the Kolkata Port Trust. 27. The Operational Creditor has duly complied with all the procedural formalities in filing the petition and has filed affidavit under section 9(3)(b), the petition is complete in all respects. 28. During the course of argument, the Ld. Counsel for the Operational Creditor submitted that the Operational Creditor had provided storage facilities to the Corporate Debtor in terms of the MoU dated 23/08/2017 at a monthly consideration of Rs.16,19,692/- and the parties had subsequently m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t from Operational Creditor after 6th January, 2020 till Form No. 3 notice was sent on 9th September, 2021. It is submitted that fi the Corporate Debtor did not pay the monthly rent for three consecutive months when it was in possession of the said plots. The Operational Creditor was entitled to terminate the MoU. It is submitted that no termination notice of MoU has been disclosed by the Operational Creditor. 33. It is submitted that the reimbursement of 50% of Property Tax being claimed by the Operational Creditor is invalid and illegal as the rent is inclusive of prevailing Property Tax. 34. Ld. Counsel for the Operational Creditor has submitted that the Corporate Debtor has itself accepted its liability to pay the Property Tax of Rs.28,87,372/- and the outstanding arrears in service charges having been received the bills and invoice raised by the Operational Creditor at page 37 of the C.P. 35. It is submitted that there has been no termination of MoU by the Corporate Debtor which will be evident from the letter dated 6th January, 2020 wherein the Corporate Debtor has merely vacated the said premises. There is no whisper of termination in the said letter dated 6th January, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olvency Resolution Process and call for the submission of claims under Section 15. The public announcement referred to in clause (b) of sub-section (1) of Section 15 of Insolvency & Bankruptcy Code, 2016 shall be made immediately. iv) Moratorium under Section 14 of the Insolvency & Bankruptcy Code, 2016 prohibits the following: 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 (54 of 2002); d) The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. v) The supply of essential goods or services rendered to the Corpo ..... 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