SETH THAKURDAS KHINVRAJ RATHI Vs. CALS REFINERIES LTD

JUDGEMENT

(1.) This petition has been filed u/s 9 of the Insolvency and Bankruptcy Code, 2016, (hereinafter referred to as the Code) . It has been filed in the format as required under the Code on allegations of an unpaid debt of Rs. 1,08,75,799/-.

(2.) The brief background of the case giving rise to the unpaid debt has been delineated in the petition. The Petitioner/ Operational Creditor had permitted use and occupancy of its premises, being the flat bearing No. 17, 3rd Floor, Shri Shantiniketan Cooperative Housing Society Ltd., 95, Marine Drive, Mumbai, along with garage No.7 for the Director of the Corporate Debtor viz. Mr. Shrinivasan, and accordingly a Leave & Licence Agreement as well as Licence and Hire Charges Agreement, both dated 10.3.2008, were executed between the parties for a period of 5 years at agreed consolidated charges of Rs. 3.65 Lakhs.

(3.) In view of the unpaid aforesaid liability and the Corporate Debtor's intention of avoiding the same, they filed a Suit no. 250 of 2008 before the Ld. Small Causes Court, Mumbai, praying for restraining the Operational Creditor from illegally dispossessing them from the aforesaid property. Vide order dated 17.4.2009, while granting injunction in favour of the Corporate Debtor, the Ld. Trial Court also imposed an obligation on them to deposit the monthly amount in court as per terms agreed upon, before the 10th day of each month. The said order was challenged by way of a Revision Petition. The Revisional Court declined to interfere with the order directing the Corporate Debtor to make the monthly payment. In order to avoid compliance as directed by the Ld. Revision Court, the Corporate Debtor is stated to have withdrawn its Revision Petition as also the Suit before the Ld. Small Causes Court. The agreements were terminated by the Operational Creditor and an application was filed before the competent authority u/s 24 of the Maharashtra Rent Control Act, seeking a decree for eviction as well as mense profits as damages for the unlawful possession of the premises occasioned by the termination of the agreements. The Leave to Defend application filed by the Corporate Debtor was rejected by the Court and directions were passed for the Corporate Debtor to hand over the possession of the premises to the Operational Creditor. They were also directed to pay arrears of compensation at the agreed rate of Rs.3,65,000/- per month w.e.f. 10th June, 2009 for illegally occupying the premises without payment of Licence Fee and Hire Charges. The competent authority further directed the Corporate Debtor to pay damages @ Rs. 7,35,000/- per month until handing over the vacant peaceful possession to the Operational Creditor. The Operational Creditor submits that the said premises were finally vacated on 1.5.2010. However, they failed to pay arrears of compensation and damages as awarded by the competent authority. This order of the Competent Authority was duly challenged before the Additional Commissioner, Konkan Division, vide Revision Application No. 232 of 2010, which was disposed off with directions to pay arrears of compensation for 6 months @ Rs.3,65,000/- aggregating to Rs. Rs. 23,72,500 and interest thereon at the rate of 24% per annum. The Corporate Debtor was also directed to pay damages @ Rs. 30,000 per day aggregating to Rs.38,70,000/- with interest thereon @ 24% per annum. The security amount was also directed to be forfeited without adjustment towards any other dues.