ITC LIMITED Vs. OBEROI MALL PVT LTD

JUDGEMENT

(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.

(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: