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TMI Blog2022 (9) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... e total amount claimed by the Operational Creditor is Rs. 42,75,912/- and the debt fell due from the date of 1.09.2017. The Demand notice under section 8 of the Code was sent on 08.05.2019. the reply to the same was sent on 20.05.2019. 5. Submissions on behalf of the Operational Creditor: 5.1 The case of the Operational Creditor is that in or about 04.05.2007, she had let out Flat No.s 3A and 3B on the 3rd Floor at premises no. 230/B, Acharya Jagadish Chandra Bose Road, Kolkata- 700020 to the Corporate Debtor. From time to time, the Corporate Debtor executed agreements with the Operational Creditor for availing the services upon payment of rents and other ancillary charges and presently the Deed of Lease dated 24th November, 2016 for a term of 9 years is subsisting. 5.2 As per the Contract, the Corporate Debtor was liable to pay a monthly rent of Rs.50,784/- along with maintenance charges, at the rate of Rs.91,646/- per month and additional charges of Rs.7570/- per month towards service charges and along with the applicable Goods and Service Tax. 5.3 The Corporate Debtor availed the services of the Operational Creditor in connection with the rented property and the other servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t their own cost. 6.6 On 07.09.2017, the Corporate Debtor wrote a letter to the Operational Creditor raising certain deficiency in maintenance services provided by the Operational Creditor. In the said letter, the Corporate Debtor had also requested the Operational Creditor to take care of those deficiency in services and also informed that the Corporate Debtor shall not pay the maintenance charges till removal of defects. 6.7 In reply to the said letter dated 07.09.2017, the Operational Creditor made vague and baseless reply on 22.09.2017, denying all the facts. The Corporate Debtor, then wrote another letter dated 3.11.2017 stating in detail the non - maintenance of the leased premises and failure on part of the Operational Creditor to fulfil their obligations in terms of the Agreement dated 24.11.2016 in spite of several requests and reminders over telephone. 6.8 Due to the said failure, the Corporate Debtor was compelled to suspend the payment of charges to the Operational creditor and requested them to comply with the terms of the agreement. 6.9 Further, it is submitted that the Operational Creditor has not furnished the affidavit under section 9(3)(b) of the Code which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Memorandum of Understanding and therefore, the purported defense of the Corporate Debtor is completely mala fide, misconceived and has been raised only with an intention to avoid the legitimate payment of the legitimate dues accruing to the Operational Creditor. 13. In a summary proceeding, the Tribunal has the jurisdiction to consider whether there is any default made by the Corporate Debtor. However, in the instant case it is an admitted position that there is a default in payment of the legitimate dues of the Operational Creditor. The Corporate Debtor has defaulted in making payment of rent, service charges and maintenance charges. 14. It is denied that the compliance of the provision under section 9(3)(b) of the Code is required. The Corporate Debtor has duly replied to the demand notice issued under Form 3 of the Code and hence, the scope of filing an affidavit under section 9(3)(b) of the Code does not arise. Supplementary Affidavit on behalf of the Operational Creditor: 15. The Operational Creditor vide supplementary affidavit dated 09.08.2019, brought on record the certified and stamped copy of the Bank Statements mentioned as Annexure D of the petition, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anding lease rental in case of a property so leased for commercial purposes, as in the instant case, will be covered under 'operational debt' within the meaning of section 5(21) of the Code. 20. The Corporate Debtor has claimed that the lease agreement, since insufficiently stamped , is inadmissible in evidence. In this regard, we rely on the decision of the Hon'ble Supreme Court in the matter of Avinash Kumar Chauhan vs. Vijay Krishna Mishra (2009) 2 SCC 532, decided on 17.12.2008 " 29. In T. Bhaskar Rao v. T. Gabriel and others9, ( AIR p. 177, para 5) "5. Section 35 of the Stamp Act mandates that an instrument chargeable with duty should be stamped so as to make it admissible in evidence. Proviso (a) to Section 35 of the Stamp Act enables a document to be received in evidence on payment of stamp duty and penalty if the document is chargeable, but not stamped or on payment of deficit duty and penalty, if it is insufficiently stamped. The bar against the admissibility of an instrument which is chargeable with stamp duty and is not stamped is of course absolute whatever be the nature of the purpose, be it for main or collateral purpose, unless the requirements of proviso (a) t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in highlighted by the Corporate Debtor. 23. From the conjoint perusal of the abovementioned emails, both the letters and the legal notice as mentioned above, it is clear that the debt in question is disputed. The Corporate debtor, accordingly, has pointed out to the existence of the said dispute in its reply to the demand notice dated 08.05.2019. 24. In this regard, we would like to refer to the decision of the Hon'ble Supreme Court in the matter of Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited Mobilox Innovations Private Limited vs. Kirusa Software Private Limited (21.09.2017 - SC) : MANU/SC/1196/2017 wherein it was held that: "The scheme of Section 7 stands in contrast with the scheme Under Section 9 where an operational creditor is, on the occurrence of a default, to first deliver a demand notice of the unpaid debt to the operational debtor in the manner provided in Section 8(1) of the Code. Under Section 8(2), the corporate debtor can, within a period of 10 days of receipt of the demand notice or copy of the invoice mentioned in Subsection (1), bring to the notice of the operational creditor the existence of a dispute or the record of the pendency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Creditor was notified of such pre-existing disputes by the Corporate Debtor in its reply to the said demand notice. 27. Further, the Operational Creditor in the petition has mentioned that the debt fell due from 1st September 2017. However, in the demand notice dated 8th May 2019, the Operational Creditor has claimed that the debt fell due from 1st August 2017. Further, the Operational Creditor has not explicitly mentioned the dated of default in the petition but in the rejoinder, the Operational Creditor has mentioned the date of default to be 1st August, 2017. On the other hand, in the letter dated 22.09.2017, the Operational Creditor has admitted that the Corporate Debtor has deposited the rents for months of June and July of 2017 on 06.09.2017. The Bank accounts of the Operational Creditor also show that cheques were deposited on 06.09.2017. As such, a clear determination of date of default in the instant case is not possible on the basis of the documents on record. 28. Further, the Operational Creditor has claimed that the reply to the demand notice was not sent by the Corporate Debtor within the prescribed time of 10 days. In this regard, the Hon'ble National Company Law ..... X X X X Extracts X X X X X X X X Extracts X X X X
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