V.P. Singh JUDGMENT
V.P. Singh, Member (T)
1. This appeal has been filed against the order dated 21st January 2019 passed by the National Company Law Tribunal, Hyderabad Bench, whereby the petition filed under Section 9 of the Insolvency and Bankruptcy Code, 2016, has been admitted against the Corporate Debtor Respondent No. 5, M/S. Walnut Packaging Private Limited.
2. The Appellant is the Director of the Corporate Debtor Company, and the Respondent herein was the applicant before the National Company Law Tribunal, claiming to be the Operational Creditors.
3. Brief facts, as stated by the Respondent/Applicant, is that the Respondents are the Lessors and the Corporate Debtor - M/s. Walnut Packaging Private Limited is the Licensee of Industrial Premises consisting of land measuring about 1667 sq. Yards, situated at Kukatpally, Hyderabad.
4. That tenancy of the Appellant was yearly, and the rent payable for the period from July 2011 to June 2017 was Rs. 85,67,290/- and the Corporate Debtor/Appellant is stated to be making part payments of lease rent from July 2011 until December 2016, totalling to Rs. 49,96,728/-, after deduction of Rs. 5,55,192/- as TDS. The aggregate credit to the Corporate Debtor's account was Rs. 55,51,920/-. The Corporate Debtor stopped making the payment from January 2017, after the last part payment was made, which was adjusted towards rental dues. The dues against the Corporate Debtor at the end of June 2017 was Rs. 30,15,370/-. After that, the Respondent/Petitioner issued a legal notice dated 15-06-2017 to handover the property back to the Petitioners, but the Corporate Debtor failed to vacate the property. After that, an eviction suit was filed against the Corporate Debtor before the jurisdictional Civil Court.
5. The learned counsel for the Respondent/Petitioner further submitted that the Demand Notice u/s. 8 of I&B Code 2016 dated 18-01-2018 was also issued against the Corporate Debtor demanding Rs. 49,51,605/-, which was duly served on the Corporate Debtor.
6. The Corporate Debtor/Appellant submitted that he had paid the rent until December 2017, and no amount is due to the Petitioner. It is further stated that due to slowdown in the Operations of the Corporate Debtor during the period from April 2012 to July 2012 Petitioner/Respondent agreed on a moratorium for no yearly enhancement of rent for six years.
7. The Adjudicating Authority held that the Corporate Debtor had taken the property of the Petitioners on rent and they were paying rent up to June 2017. But the Corporate Debtor failed to pay the rent from July 2017 onwards.
The Adjudicating Authority has stated that:
"The main issue in the matter is as to whether the Petitioners accepted a moratorium for no enhancement of rent for six years or not? Though the Corporate Debtor says so, but there is no documentary proof filed to that effect. In the absence of any documentary proof about accepting the moratorium, the submissions of the Corporate Debtor are to fail. It is deemed that the Corporate Debtor has failed in making payment of rents as no substantial document is placed on record to show the existence of moratorium between the parties regarding the Rent. Therefore, I am inclined to admit the Petition".
The following question arises for our consideration:
1. Whether a landlord by providing lease, will be treated as providing services to the corporate debtor, and hence, an o........