R. Varadharajan, Member - (1.) The factual matrix for filing this application under Insolvency & Bankruptcy Code, 2016 (IBC, 2016) by the Applicant is stated to be as follows:-
(2.) The Applicants being mother and daughter state that they are owners of service apartment bearing No. 915-A, 9th Floor, Soul City Service Apartment Complex situated at Plot No. 4, Sector-13, Dwarka, New Delhi-110078. According to the Applicants, the built up area of the Service Apartment is 34 mtrs. and the super built area is of 68 sq.mtrs. It is further stated that in relation to the said property a lease agreement was entered into between the owners being the Applicants as 'Lessors' with the 'Corporate Debtor' being the 'Lessee' on 16.8.2014. However, lease was made effective retrospectively on and from 10.1.2012 correlating with certain agreement having nomenclature of Hotelier-Buyer agreement. The duration of the lease it is claimed is for a period of 15 years effective from 10.1.2012 and the monthly rental payable being Rs. 1,37,250/- plus service tax, if any, applicable. The lock-in period in relation to both the parties of the property described as above, it is claimed is for a period of 15 years. While so, it is claimed by the Applicants/landlords that the Lessee namely the 'Corporate Debtor' had chosen to issue the termination notice dated 4.4.2016 terminating the agreement entered into between the parties before the expiry of lease time period of 15 years, in other words within the lock-in period specified in the agreement. It is also stated that at the time of terminating the same, Rs. 12,62,700/- was due by way of rentals and interest was also due for the defaulted amount @ 12% per annum which comes to around Rs. 1,95,718.03/-. In addition to the non-payment of rentals for the period in which the 'Corporate Debtor' was in occupation of the premises, the Applicant has also put forth a claim w.e.f. 10.4.2016 to 9.1.2027 in relation to monthly rentals for the unexpired period of lock-in to the extent of Rs. 2,60,05,539.74/- which it is claimed is also payable along with the interest at 12% p.a. The aggregate amount thereby it is claimed by the Operational Creditor is in a sum of Rs. 2,74,63,957.77/- and in relation to the said sum Applicants state that the notice of demand as required to be issued under Section 8(1) of Insolvency & Bankruptcy Code, 2016 dated 22.4.2017 had been sent which the Applicants claim was also served by courier on the 'Corporate Debtor' on 24.4.2017. In view of the fact that no payment of the amount claimed in default has been remitted nor the notice of demand being replied to, which it is stated to have made the Operational Creditor to file under Section 9 of IBC, 2016 this Petition for invoking the Corporate Resolution Process (CIRP) against the 'Corporate Debtor'.
(3.) The Respondent/Corporate Debtor named in the application has filed a counter/reply denying the claim as put forth by the Petitioner on the following grounds: a) That the claim is based on the lease agreement dated 16.8.2014 which has been terminated w.e.f. 04.04.2016 and hence the amount which is claimed to be in default is not right and therefore non-maintainable as the amounts which are claimed have not even accrued to the Applicants and which it has been pointed out as an instance of blatant misuse of the provisions of the Code on the part of the Applicants. b) The 'Corporate Debtor' also contends that the Applicants do not fall under the definition of 'Operational Creditor' and that the amount claimed is not an 'Operational Debt' and the Respondent cannot be categorized as the 'Corporate Debtor' under the Code and in the circumstances prima facie the Petition should be rejected. c) In support of the contention with respect to 'Operational Debt' the Respondent seeks to rely on Section 5(21) of the Code and contends that the transaction pertaining to immovable property cannot be categorized as 'Operational Debt' as the purported claim does not arise in respect of provision of goods or services or dues on account of employment or in relation to any amount payable to Government authorities. d) Since the definition of 'Operational Debt' is not satisfied, the Applicant cannot be categorized as an 'Operational Creditor' under Section 5(20) of IBC, 2016. e) It is also contended that the Application is nothing but counter blast to the claim of the Respondent Company incurred by it on behalf of the Applicants towards maintaining the premises in a sum of Rs. 3,60,841/- required to be paid for the period between April, 2016 to June, 2017 and the same remains unpaid. f) It is also contended that the Respondent Company in view of the arbitration clause contained in the Hotelier-Buyer Agreement followed up by the lease agreement has invoked the said clause and to this effect notice under Section 21 of the Arbitration Conciliation Act, 1996 issued by the Corporate Debtor dated 17.1.2017 mandated the naming of Sole Arbitrator for resolution of all disputes arising out of the agreement entered into between the parties including the sale deed and hence under Section 21 of the Arbitration and Conciliation Act, 1996 it is deemed that the commencement of proceedings of arbitration has taken place from the said date being 17.1.2017 and hence in view of the existence of a prior dispute this Petition is not maintainable. The respondent company also avers that similar arbitration proceedings for termination of lease agreement are also pending in respect of other owners of the property as similarly placed as the Applicant and the same are also pending before the Ld. Arbitrator.;