Sanjib Banerjee - (1.) THE claim of the petitioning creditor is on account of sums payable by the company under two several agreements executed in February, 2008. THE first of the two agreements is a deed of lease and the second is described as the amenities agreement. THE company had taken on lease an area of about 763 sq. ft on the first floor of the Oberoi Mall at Goregaon (East) in Mumbai.
(2.) THE petitioner says that both agreements contemplated a lock-in period which implied that the company had to honour its commitments for a period of 60 months thereunder regardless of the company using the facility. In other words, the petitioner suggests that the company was obiliged under the two contracts to pay the monthly amounts contemplated thereby for the period of 60 months whether or not the company occupied the premises or surrendered the same to the petitioner. The petitioner submits that for reasons undisclosed the company abandoned the premises and by an ante-dated letter issued on January 17, 2009 claimed that it had delivered possession to the petitioner. The petitioner says that though it is now not in dispute that the company's goods and fixtures and fittings have been removed from the shop - notwithstanding the petitioner initially seeking to exercise a lien thereon - the company is liable to make payment of the amounts due under the two agreements. The petitioner admits that an amount deposited by the company by way of security has been retained by the petitioner, but that would not cover the amount due from the company. There is an arbitration reference on the same subject matter that has been initiated at the behest of the petitioner, though the parties cannot specify whether the reference was made before or after this petition was instituted. The petitioner refers to clause 2.2 of the deed of lease. The petitioner says, and it is not disputed by the company, that there is a clause of similar import in the amenities agreement. Clause 2.2 of the deed of lease provides as follows: "2.2 This Demise, which shall subsist for the Contractual Term shall be 'Lock-in-Period'. In the event the Lessor permits the Lessee in writing to determine this Lease prior to the expiry of the Contractual Term or in the event the Lessor terminates these presents on account of any Event of Default on the part of the Lessee in accordance with the provisions of clause 19 hereunder, then in that event, the Lessee shall be liable (without prejudice to the right of Lessor for claim of damages, loss etc. in the event of termination or pre determination of these presents by the Lessor as aforesaid), to pay an amount equivalent to the Rent for the unexpired Contractual Term."
(3.) THE petitioner refers to clause 4 of the deed of lease that stipulates Che quantum of payment. THEre is an almost identical clause in the amenities agreement. THE two agreements contemplated payment at a lower rate for the first 33 months and at a slightly higher rate for the next 27 months. Clause 4 of the deed of lease provides as follows: "4. Rent 4.1. THE Lessee covenants and agrees that it shall during the Contractual Term pay to the Lessor by way of Rent the following amounts for the following periods: 4.1.1 Rent due and payable during the First Period is Rs. 1,06,057/- (Rupees One Lakh Six Thousand and Fifty Seven Only) for each month. 4.1.2 Rent due and payable during the Second Period shall be Rs. 1,21,966/- (Rupees One Lakh Twenty One Thousand Nine Hundred and Sixty Six Only) for each month." The primary defence set up by the company is that the petitioner's claim is in damages, which is generally not entertained in this jurisdiction. The company also suggests that disputed questions arise and such disputes would be evident from the correspondence exchanged between the parties prior to the issuance of the statutory notice. The company asserts that the relevant clauses requiring the lessee to make payment at the contractual rate for the entire currency of the period of occupation contemplated by the agreements are penal in nature and the intention of the parties have to be ascertained which would call for more protracted evidence than is conveniently possible in the present proceedings.;