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7. Further assertion was made that Respondent No. 1 had taken forceful possession of the property in January, 2019 from the Corporate Debtor and filed a case before the Tis Hazari Court. This factum is clearly borne out from the email dated 31.07.2019 from the Respondent No. 1 to HBI informing them about hearing in the Tis Hazari Court which took place on 19.07.2019. That the institution of this matter before the Tis Hazari pre-dated the Section 8 Demand Notice of 17.09.2019 signifies pre-existing dispute. Moreover, as Respondent No. 1 had taken forceful possession of the property in January, 2019, the Corporate Debtor was not liable to pay any lease rent for any period thereafter. Moreover, the Appellant had sent a notice on 28.04.2019 for termination of lease deed with effect from 31.05.2019. It has been contended Company Appeal (AT) (Insolvency) No. 307/2023 that in terms of the judgment of the Hon'ble Supreme Court in Mobilox Innovations Private Limited v. Kirusa Software Private Limited, Civil Appeal No. 9405 of 2017 dated 21.09.2017 ('Mobilox' in short), if a legal dispute exists, the Adjudicating Authority has to reject the application. The Adjudicating Authority thus acted in breach of the Mobilox supra judgement.

11. We have duly considered the detailed arguments and submissions advanced by the Learned Counsel for both the parties and perused the records carefully.

12. The short point for our consideration is whether payment of rent to the Operational Creditor/Respondent No. 1 as per lease deed is triggered in the present case giving rise to an operational debt, and if so, whether a default has been committed by the Corporate Debtor in respect of payment of such operational debt having already become due and payable and whether the said operational debt exceeds an amount of Rs. 1 lakh and is an undisputed debt. This examination would be in consonance with the test which has been laid down by the Hon'ble Supreme Court in Mobilox judgment supra for the Company Appeal (AT) (Insolvency) No. 307/2023 Adjudicating Authority while examining an application under Section 9, the relevant excerpts of which are as follows:-

If any of the aforesaid conditions is lacking, the application would have to be rejected. Apart from the above, the adjudicating authority must follow the mandate of Section 9, as outlined above, and in particular the mandate of Section 9(5) of the Act, and admit or reject the application, as the case may be, depending upon the factors mentioned in Section 9(5) of the Act."

13. From a perusal of material on record, we find that a notice for default of payment was issued by Respondent No.1 to the Corporate Debtor on 05.02.2019 as is placed at Annexure-L in the Appeal Paper Book ('APB' in short). The notice clearly mentions that the Corporate Debtor had been irregular in the payment of rent since 10.03.2017 and that no payment towards rent and GST was made since 30.08.2018. The Corporate Debtor was also called upon to make payment of total outstanding amount of Rs.52.64 lakhs including interest. Further in Part-IV, the operational debt claimed is Rs.94.66 lakhs inclusive of the arrears of rent and GST from 10.03.2017 till 31.05.2019 as principal amount of Rs.63.59 lakhs; Rs.13.59 lakhs as interest amount and Rs.17.47 lakhs as User and Occupation Company Appeal (AT) (Insolvency) No. 307/2023 Charges from 01.06.2019 to 30.09.2019. In addition, an amount of Rs.4.48 lakhs per month after deduction of TDS and addition of GST has been claimed till continuance of the occupation of the leased premises. This clearly shows that the Operational Creditor had been consistently pressing for release of their outstanding amount while there is nothing on record to show that the Corporate Debtor objected or controverted the claims raised by the Operational Creditor prior to the issue of Section 8 Demand Notice. The above findings clearly establish that the first two conditions laid down in the Mobilox judgment supra of operational debt exceeding Rs. 1 lakh and having become due and payable but not yet paid is squarely met.

14. This now brings us to the third aspect of the Mobilox judgment supra as to whether any genuine and real pre-existing dispute is discernible in the facts of the present case and before we dwell into the facts before us we feel that it is useful to quote the guiding principles laid down in this judgment as under:

"40. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the "existence" of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the "dispute" is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute Company Appeal (AT) (Insolvency) No. 307/2023 except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application."