SUNIL PACKAGING (P ) LTD Vs. DISHNET WIRELESS LTD

JUDGEMENT

(1.) Sunil Packaging Pvt. Ltd., the Operational Creditor herein, filed this Insolvency and Bankruptcy Petition against the Corporate Debtor, Dishnet Wireless Ltd., alleging that a sum of Rs. 40,40,726/- is in default as on 26.2.2017, by the Corporate Debtor for initiation of proceedings under Insolvency and Bankruptcy Code, 2016 (the Code) read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (the Rules) seeking relief under Section 9 of the Code. The Operational Creditor says that their property situated at Khasra No. 2150, Village Mawana Kalan, Mawana Road, District Meerut, Uttar Pradesh admeasuring 36,495 sq. ft. with the constructed area of 2,260 sq. ft. leased to the Corporate Debtor for using it as warehouse to store their optic fibre materials and other telecommunication equipments by a Lease Agreement dated 25.10.2013, for a total period of 36 months commencing from 25.10.2013. The Lease Agreement states that the parties shall not be entitled to terminate the lease before expiry of 24 months from the date of commencement of the lease. The lease rent was fixed at Rs. 1,25,000/- per month payable on or before 7th of every month. The Lessee, i.e., the Corporate Debtor has also paid an interest free refundable security deposit of Rs. 3,75,000/- which is equivalent to three months rent payable to the Lessor, i.e., the Operational Creditor. In the covenants portion of the Lease Deed, the Lessor (Operational Creditor) represented, declared and agreed, that the Lessor have not created any tenancy, license and lease deed or any right in favour of any person in respect of the leased premises, nor has created any such charge or encumbrance on the said leased premises, nor shall create or purport to create any such charge or encumbrance hereafter that may adversely affect the rights of the lessee (corporate debtor) over the leased premises under the Lease Deed.

(2.) The Operational Creditor says that rent was paid upto February- March, 2014 and there was no subsequent payment of lease rent by the Corporate Debtor.

(3.) The Advocate for the Operational Creditor issued a legal notice under Section 8(1) of IB Code on 13.1.2017, demanding a sum of Rs. 39,15,726/- as due and payable in terms of the said Lease Deed for the lease period with interest at the rate of 2496 per annum on Rs. 39,15,726/-, within 10 days, being the debt due and payable, failing which Insolvency Resolution Process will be initiated against the Corporate Debtor under the provisions of Section 9 of IB Code. In the said notice, at Para 3 it was stated that a Lease Deed dated 3.7.1989 was executed by the Operational Creditor in favour of one M/s. Greenfield Corporation Ltd. for a period of 99 years for the property situated at Khasra No. 2150, comprising of a piece and parcel of land admeasuring 2800 sq. yards (same property leased to the Corporate Debtor), the said Lease Deed empowered Greenfield Corporation Ltd. to mortgage the said property to UP Financial Corporation Ltd., as security for a loan of Rs. 31,45,000/- disbursed by UP Financial Corporation Ltd. in favour of Greenfield Corporation Ltd. The said notice further states that the loan was duly discharged by Greenfield Corporation Ltd. pursuant to which no charge in favour of UP Financial Corporation Ltd. exists. It further says that the Operational Creditor by a notice dated 21.3.2003 terminated the Lease Deed dated 30.7.1989 entered with M/s. Greenfield Corporation Ltd.