PAUNDRA ENTERPRISES PVT LTD Vs. HCL SERVICES LIMITED

JUDGEMENT

(1.) The 'Operational Creditor'-applicant has approached this Court with a prayer to admit the present application filed under Section 9 of the Insolvency and bankruptcy Code, 2016 (for brevity 'the Code') and appoint Interim Resolution Professional in terms of Section 16 of the Code as the Corporate Debtor has defaulted in making the payment of the operational debt to the applicant. The applicant had issued demand notice in form 3 as prescribed by the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 which has been duly delivered to the 'Corporate Debtor' demanding the payment of the 'operational debt'.

(2.) Brief facts of the case necessary for disposal of the controversy raised in this application is that the applicant-operational creditor and the respondent-corporate debtor had entered into a Leave and License Agreement dated 11.04.2014 leasing the constructed area situated at CS No. 360 of Vile Parle Division, Old Military Road, Marol, Andheri East, Mumbai-400059. The lease was for a period of two years and was to expire on 10.04.2016. The case of the applicant is that in case of overstay beyond the period of two years, clause 17.5.6 of the Leave and License Agreement has specifically provided for payment of double the amount of license fee/rent payable by the Corporate Debtor to the Operational Creditor. It has also been pointed out that by virtue of clause 21.1 of the Leave and License Agreement the Corporate Debtor was obliged to vacate and hand over vacant possession of the licensed premises on the expiration of the license by efflux of time. There is stipulation in clause 34.3 that no modification, amendment or waiver of any of the provisions of this agreement would be effective unless made in writing specifically referring to this agreement and duly signed by the parties. It is in lieu of the aforesaid 'default' that a claim in the present petition has been made as the vacant possession of the premises was handed over on 19.11.2016 which is after a period of seven months. Therefore, a claim of Rs. 4,38,97,354/- (Rupees Four Crore Thirty Eight Lakhs Ninety Seven Thousand Three Hundred and Fifty Four Only) excluding service tax has been made. It has also been stated that a sum of Rs. 88,18,665 (Rupees Eighty Eight Lakhs Eighteen Thousand Six Hundred Sixty Five only) is lying with the 'Operational Creditor'-applicant as security deposit and hence, the balance amount of Rs. 3,64,28,017.20 including interest is claimed to be due and payable by the respondent to the applicant. The default is stated to have occurred on 12.04.2016 and continued till 19.11.2016. The dates when the amount fell due have been given in Annexure-1.

(3.) In the reply filed by the Corporate Debtor it has not been disputed that the Leave and License Agreement was executed on 11.04.2017 for a period of two years. It is claimed that on 16.12.2015 Corporate Debtor intimated to the applicant that it is likely to vacate the premises on 11.04.2016 on the day of expiry of two years as per agreement. It made further enquiry about the possibility of renewal oflicen.se in respect of two floors. The request-was repeated vide email dated 16.12.2015, 18.12.2015 & 22.12.2015. However, no reply was sent by the applicant. The Corporate Debtor vide email dated 14.01.2016 conveyed its intention to vacate the premises on 11.04.2016 and requested the applicant to take possession of the premises. It is claimed that the applicant had assured the Corporate Debtor that the license of the premises would be renewed after their internal discussion in the applicant company. Accordingly, vide email dated 04.02.2016 and 08.02.2016 the Corporate Debtor-respondent requested the applicant to fix date and time for meeting to finalize the renewal of the license. However, the Corporate Debtor did not receive any confirmation. Accordingly, it was requested that it would be difficult for the Corporate Debtor to shift in a short span of time and requested to extend the lease till 31.10.2016 in respect of the basement, ground floor and the first floor of the premises and offer to vacate second, third and fourth floor of the said premises on 11.04.2016. A request in terms thereof was sent to the applicant to take possession as the requirement for space has come down drastically. It required only two floors i.e. ground floor and first floor w.e.f. 12.04.2016. After various emails the applicant refused to accord its approval to the proposal sent by email dated 07.04.2016 along with draft agreement and the applicant vide letter dated 01.06.2016 called upon the Corporate Debtor to vacate the entire premises and hand over its possession. The respondent also sought penal rent as per the stipulation under section 24 of the Maharashtra Rent Control Act, 1999. The offer of the Corporate Debtor for amicable settlement were not accepted and it is claimed that basement, second, third and fourth floor of the premises had already been vacated on 11.04.2016 and only ground floor and first floor were retained.