V. Nallasenapathy, Member - (1.) Black Pearl Hotels Pvt. Ltd., the operational creditor herein, engaged in operating a Retail store in a building situated at 1st floor of Curzon Complex, No. 9, Brigade Road, Bangalore-560001, entered into a Business Conducting Agreement dated 1.2.2008 with Planet M Retail Ltd., corporate debtor herein, to conduct and manage the business of running a music concept store by name "Planet M" on behalf of the operational creditor, in consideration of which, the corporate debtor is liable to pay monthly conducting fee to the operational creditor. The said Agreement provides for a monthly minimum guaranteed fee of Rs. 11.00 lakh or a fixed percentage of net sale proceeds from the conduct of business, whichever is higher, payable on or before 5th of every month.
(2.) The operational creditor says that at request of the corporate debtor on the reasoning that the business venture is not making profit, on 24.6.2009, an Addendum to conducting Agreement was entered whereby the monthly minimum guaranteed conducting fee was scaled down to Rs. 7.00 lakh for a period of only 26 months retrospectively from 1.2.2009 to 31.3.2011.
(3.) The operational creditor avers that the corporate debtor continued to pay only Rs. 7.00 lakhs per month from April, 2011 to September, 2011 as fees instead of paying Rs. 11.00 lakhs per month in terms of Business Conduct Agreement and the Addendum to the said Agreement. Thereafter, from October, 2011 the corporate debtor failed to pay the conducting fee and hence the operational creditor was constrained to terminate the Business Conduct Agreement (but the date of termination is not given). The operational creditor contends that a sum of Rs. 3,92,38,405/- remains outstanding which is in default and hence, this petition under Section 9 of IBC.;