Amex Infrastructure Private Limited vs M/S. Samaro Global Industries Pvt Ltd

IN THE MATTER OF: Amex Infrastructure Pvt. Ltd. ...Appellant Versus Samaro Global Industries Pvt. Ltd. ...Respondents Present: For Appellant : Mr. Sandeep Bajaj, Mr. Vipul Ji, Mr. Danish Ranjan & Mr. Mayank Biyani, Advocates.

For Respondents : Mr. Udit Gupta & Ms. Pragya Gupta, for R-3.

ORDER

(Hybrid Mode)

[Per : Justice Rakesh Kumar Jain (Oral)]

16.09.2025 This appeal is filed by the Operational Creditor, being

aggrieved vide the order dated 01.02.2024, by which C.P. (IB) No.

592/MB/2023, filed by the Appellant for the resolution of its debt of

Rs. 2,38,26,883/- has been dismissed.

2. In brief, the Appellant/ Operational Creditor leased out its immovable

property, mentioned in Schedule- I of the Leave & License Agreement dated

16.08.2019 to the Corporate Debtor for a period of five years starting from

01.07.2019 to 30.06.2024 for industrial and commercial purposes.

3. Both the parties also entered into another agreement called the

Amenities Agreement dated 16.08.2019 which was to be terminated with the

Leave & License Agreement.

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4. The Appellant, in its application filed under Section 9 of the

Insolvency & Bankruptcy Code, 2016 ('Code'), claimed the rent on the basis

of Leave & License Agreement as under :-

5. Similarly, the amount for the amenities has been charged for the

following period :-

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6. The Appellant made the following averments in Part IV of the

application which has been noticed by the Tribunal in the Impugned Order

as under :-

7. Counsel for the Appellant has submitted that the total period of five

years was from 01.07.2019 to 30.06.2024 and the lock in period was of

three years. The Respondent terminated the Leave & License Agreement as

well as Amenities Agreement on 04.01.2023 after the expiry of lock in

period.

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8. The Learned Tribunal has dismissed the application by recording its

finding in Para 13 (ii) which is also reproduced as under :-

"13 ii. Without prejudice to the afore-stated, it was expressly agreed under the L&LA dated 16.08.2019 that the Licensor viz. Operational Creditor has given a 15- month rent-free period to the Corporate Debtor, and thus the latter is not liable to reimburse the license fee during the rent-free period of 15 (fifteen) months w.e.f. 01.07.2019 to 30.09.2020 aggregating to INR 1,20,00,000/-. With regards to the double license-fee charged by the Operational Creditor, we find that the said L&LA clearly specifies that double fees amount can be charged only if there is a default under Clause {12(d)} of the said L&LA, which comes into force only "..in case the licensee does not vacate". In the present case however, the Corporate Debtor had duly vacated the premises. Furthermore, the claim amount(s) as against interest charges, discount of power connection and GST expenses are unsubstantiated in terms of the L&LA dated 16.08.2019. The net amount payable, therefore, falls below the threshold limit in terms of Section 4 of the IBC, 2016. Hence, we do not find any reason to delve into the other merits of the Application."

9. Counsel for the Appellant has argued that in terms of the Leave &

License Agreement, the Appellant has not charged the license fee from July

2019 to September, 2020 and charged the amenities fee for that period. It is

submitted that the amount of Rs. 4,10,64,000/-, calculated from July, 2019

till February, 2023, includes both the rent and amenities fee. It is further

submitted that rent and amenities fee for the month of March, 2023

amounting to Rs. 14,16,000/- has not been paid by Respondent. Therefore,

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Appellant has received Rs. 3,27,09,095/- and Rs. 20,36,000/-. It is

submitted that despite the deduction of Rs. 3,47,45,095/-, received by the

Appellant, the Appellant is entitled to double of the amount of amenities and

license fee for the Month of April during which the premises was retained by

the Respondent.

10. Besides this it is also contended that the Leave & License Agreement

itself provides charging of 2% interest on delayed payment which has also

been charged by the Appellant to the tune of Rs. 17,32,978/-. It is further

contended that as per Clause IV (h) of the Leave & License Agreement, the

licensee was permitted to install electrical load of 1000 KVA, which was in

the name of the Licensor, at the cost of the Licensee. However, the

Respondent had removed the said electrical connection installation at the

time of vacating the premises because of which the amount of Rs.

1,20,00,000/- has been claimed.

11. It is thus submitted that the sum total of the amount crosses the

threshold limit of Rs. 1 Crore, therefore, the application could not have been

dismissed.

12. On the other hand, Counsel appearing on behalf of the Respondent

has vehemently argued that there is no error in the Impugned Order. It is

submitted that the notice for termination dated 01.02.2023 giving period of

three months was to expire on 30.04.2023, whereas it is further submitted

that the Appellant had never charged any interest and in so far the amount

of power connection is concerned, the same cannot be allowed.

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13. In rebuttal, Counsel for the Appellant has submitted that even if the

other amount is not taken into consideration and the amount of rent and

amenities of Rs. 4,24,80,000/-is taken, if Rs. 3,47,45,095/- is deducted,

then the amount comes to around Rs. 77 Lakhs and if the amount of the

double license fee and amenities along with interest and the discount of

power connection is also added then it will cross the threshold.

14. After hearing Counsel for the Parties and perusing the record, we

have found that this case is based upon two written agreements executed

between the parties i.e., Leave & License Agreement and Amenities

Agreement, both executed on the same date i.e., 16.08.2019 for a period of

five years commencing from 01.07.2019 to 30.06.2024. The Appellant gave

a concession to the Licensee regarding the payment of Leave & License

Agreement fee w.e.f. 01.07.2019 to 30.09.2020 but the amount of amenities

was charged. It is submitted that the lock in period was only of three years.

The Respondent served an e-mail dated 04.01.2023 for leaving the premises

on the ground that they are unable to pay the rent and submitted that the

said communication be treated as a notice to vacate the premises as

provided in the Leave & License Agreement.

15. On the other hand, Counsel for the Respondent has admitted that

notice given on 04.01.2023 for three months would have expired on

03.04.2023, whereas the premises was vacated in the month of May as

claimed by the Appellant. If that is so, the issue raised by the Appellant

about the charging of double license fee and amenities would definitely crop

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consider.

16. We have also noticed the rate of interest @ 2% per month from the

contents of Para IV (f) of the Leave & License Agreement which can be

charged by the Appellant on delayed payment but the Learned Tribunal has

observed that the Appellant has failed to substantiate this issue of charging

the interest.

17. In this view of this matter, the Learned Tribunal has committed an

error in not thoroughly going into the issues raised by the parties

concerned, much less calculating the actual amount for the purpose of

finding out as to whether the said amount is enough to maintain the

application filed under Section 9 of the Code i.e., crossing the threshold.

18. In such circumstances, we deem it just and expedient to set aside

the Impugned Order and remand the matter back to the Learned Tribunal to

decide the application again by passing a speaking order.

19. Hence, the appeal succeeds, the Impugned Order dated 01.02.2024

is hereby set aside. The matter is remanded back to the Learned Tribunal.

The application bearing C.P. (IB) No. 592/MB/2023, is restored. Parties are

directed to appear before the Tribunal on 24.09.2025. No cost. I.A., if any,

are hereby closed.

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20. It is needless to mention that we have not made any observation on

merit of the case and have left the merit to be decided by the Learned

Tribunal on the issues being raised by the parties.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Justice Mohammad Faiz Alam Khan] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical) Sim/RR

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