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6. The learned Counsel for the Appellant placed reliance on judgment of this Tribunal in Anup Sushil Dubey v. National Agriculture Co- operative Marketing Federation of India ltd. and Anr. - (2020) SCC OnLine NCLAT 674; and Sarla Tantia v. Ramaani Hotels & Resorts Pvt. Ltd. and Anr. - (2019) SCC OnLine NCLAT 725.
7. The learned Counsel for the Respondent, refuting the submissions of learned Counsel for the Appellant submits that the License Agreement between the parties does not come within the meaning of 'operational debt'. The alleged dues of rent from the Respondent is purely a subject matter of the civil suit between the parties and the present Appeal is not maintainable. The Appeal deserves to be dismissed as there was pre- existing dispute between the parties. Outstanding rent/ License Fee does not come within the meaning of 'operational debt' as defined in Section 5(21) of the code. The Application under Section 9 for recovery of license fee is not maintainable. Prior to License Agreement between the parties, there was a Lease Agreement, which was executed on 06.01.2014 between RIICO and the Appellant. A Writ Petition has also been filed in Rajasthan Company Appeal (AT) (Insolvency) No. 423 of 2021 5 High Court for cancelling the lease of the premises granted in favour of Appellant by RIICO. The learned Counsel for the Respondent has placed reliance on judgment of this Tribunal in M. Ravindranath Reddy v. G. Kishan & Ors. - Company Appeal (AT) (Ins.) No.331 of 2019 and Promila Taneja vs. Surendri Designe Pt. Ltd. - Company Appeal (AT) (Ins.) No.459 of 2020.
25. The claim of the Operational Creditor for payment of License Fee is fully covered as 'claim' of the definition under Section 3, sub-section (6) and similarly liability or obligation in respect of claim becomes a debt on the part of the Corporate Debtor within the meaning of Section 3 (11), which defines debt in following words:
"(11) "debt" means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt"
"19. The contention of the Learned Counsel for the Appellant that Regulation 32 read with Section 14(2) is applicable to the facts of this case and that cold storage Company Appeal (AT) (Insolvency) No. 423 of 2021 24 facilities cannot be construed as 'essential service' and, therefore, does not fall within the meaning of 'Operational Debt' as defined under Section 5(21), is untenable, having regard to the fact that Regulation 32 read with Section 14(2) only mentions essential goods and services whose supply cannot be terminated during the course of CIRP. The Code does not anywhere specify that the goods so mentioned under Regulation 32 are the same as those which fall within the ambit of the definition of Section 5(21). Annexure 1D of the Leave and Licence Agreement stipulates that the cold storage with the machinery and equipment has been designed for storage of all agricultural commodities. The Lessee being in need of a cold storage participated in the tender floated by the Lessor and sought for grant for the use and occupation of the cold storage unit. It is apparent from the material on record and the terms and conditions of the Leave and Licence Agreement that the Appellants have leased out the premises for 'Commercial Purpose', which comes within the meaning of 'Service' for the purpose of sub-Section (21) of Section 5 of the I&B Code, 2016.
As the premises in the case on hand is leased out for 'Commercial Purpose', the cold storage owner/NAFED on collection is required to pay 'service tax' which is reflected in the tax invoices and 'Ledger Accounts' which is part of the record filed.
22. Therefore, keeping in view, the observations made by the Hon'ble Supreme Court in Para 5.2.1 of Mobilox (Supra), and having regard to the facts of the instant case this Tribunal is of the earnest opinion that the subject lease rentals arising out of use and occupation of a cold storage unit which is for Commercial Purpose is an 'Operational Debt' as envisaged under Section 5(21) of the Code. Further, in so far as the facts and attendant circumstances of the instant case on hand is concerned, the dues claimed by the First Respondent in the subject matter and issue, squarely falls within the Company Appeal (AT) (Insolvency) No. 423 of 2021 26 ambit of the definition of 'Operational Debt' as defined under Section 5(21) of the Code."