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2022 (8) TMI 836 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - non-payment of Minimum Guaranteed Royalties as compensation in lieu of Licensing Agreement entered into with the Corporate Debtor - Operational Debt u/s 5(21) of the Code or not - case of the Appellant is that the payment of Minimum Guaranteed Royalties under the Agreement does not arise out of any ‘goods or services’ and therefore does not fall within the ambit of 'Operational Debt' as defined under Section 5(21) of the Code - pre-existing dispute or not - service of notice - HELD THAT:- In the instant case, the Respondent has permitted the (a) use manufacture, sell, distribute and advertise the licensed products (b) use of intellectual property rights i.e., the trademark ‘Kolkata Knight Riders’/(‘KKR’) brand logo and any other trademark which as the first Respondent may designate in its sole and absolute discretion or in association with the licensed products in India as well as on packaging, promotional and advertising material associated therewith - the 'Claim' of the Respondent is in respect of the provision of the Goods and Services for which the 'Corporate Debtor' is contractually obligated to make the payments towards such 'Claim'. The clauses of the Agreement provided for Royalties to be paid as a variable amount to the first Respondent and the minimum guaranteed amount to be paid as a fixed payment as stipulated under Clause 4.2 of the Agreement. The 'Claim' in respect of such provisions of ‘goods and services’, under the terms of the Agreement, fall within the ambit of the definition of 'Operational Debt' as defined under Section 5(21) of the Code. Pre-Existing Dispute between the parties - HELD THAT:- It is relevant to peruse the emails exchanged between the parties where nowhere did the 'Corporate Debtor' raise any dispute in terms of Section 8(2)(a)read with section 5(6) of the Code, either with regard to existence of the amount of debt or with regard to the quality of goods or services or regarding the breach of the representation or warranty either directly or indirectly. Service of section 8 notice - HELD THAT:- The contention of the Learned Counsel for the Appellant that in the very same email dated 25.04.2018, it is stated that the record establishes that the 'Corporate Debtor' had willfully and actively avoided service of the Notice and therefore, this statement proves that the Notice was never received by them is untenable, keeping in view that the Demand Notice was sent to the Email ID of the 'Corporate Debtor' which is the registered Email ID shown in the Master Data as stipulated by the Ministry of Corporate Affairs. Thus, there is no illegality or infirmity in the well-reasoned Impugned Order of the Learned Adjudicating Authority - appeal dismissed.
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