9911796707
TMI Blog2014 (3) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... t is payable to the petitioner. According to the respondent, the petitioner is liable to refund the sum of Rs.19,41,280/- which had been paid by the respondent to the petitioner, earlier. 2. The controversy to be considered in the present case is whether the dispute raised by the respondent is a bonafide dispute. 3. Briefly stated the facts are as under:- 3.1 The respondent company is engaged in the business of developing interactive and participative contents for interactive television participation. The petitioner is, inter alia, engaged in the business of designing computer applications and systems. The respondent and the petitioner entered into an agreement dated 13.01.2010 whereby the petitioner agreed to grant a perpetual licence to the respondent for right to use its software programmes and for customization of the same for requirements of the respondent. 3.2 Pursuant to the agreement, the respondent issued a purchase order dated 15.01.2010. The said purchase order is quoted as under:- "PURCHASE ORDER DATED 15th JANUARY, 2010 1. Vendor Sasken Communication Technologies Ltd. having its registered office at 139/25 Domlur Ring Road, Bangalore 38. 2. Client Cellcast Int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is stated to have provided the requisite licence and the respondent sent an e-mail on 07.05.2010 conveying the User Acceptance Test (UAT) clearance, which is reproduced below:- "Pls treat this email as the UAT Clearance. We are thus approving the completion of M3- User Acceptance of deployed solution including − Coverage of Bollywood Dhamal application through PowerConnectTM platform. − Coverage of Bid2Win application through PowerConnectTM platform. − Coverage of Astro application through PowerConnectTM platform. − Ability to make outbound calls through PowerConnectTM platform. − Ability to communicate Cellcast server through URLs. − MIS display for number of IVR calls made per server, per application, region based, operator based. − Complete MIS display. − All applications were up & running during live shows. With the completion of the above, Cellcast hereby accepts completion of User Acceptance of deployed solution for Tulip project on 11-May-2010." 3.5 After the receipt of the UAT clearance, the petitioner raised a invoice dated 14.05.2010 for a sum of Rs.19,48,280/- which was inclusive of service tax and other taxes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... marked in Red in the attached document. Of these the issue pertaining to the Live Shows is ABSOLUTELY CRITICAL and a complete SHOWSTOPPER. We have withdrawn deploying the PowerConnect System since this issue of Call not Connecting has repeated twice in the last 1 week itself. Pls note that this has forced us to redeploy our own system in the same Keygoe Switch arrangement and the Cellcast Solution has served the purpose of handing the calls in the Live Show. Hence this is an urgent request to maximize efforts in resolving this issue. We still do not have the confidence of deploying the Power Connect System on all our Live shows and this is affecting our Business very seriously." 3.8 The petitioner, by its letter dated 09.05.2011, demanded the payment for a sum of Rs.19,41,280/- against the invoice dated 14.05.2000. The said letter was further followed by a reminder letter dated 10.08.2011. In response to the said letters, the respondent caused a legal notice dated 01.09.2011 to be served on the petitioner calling upon the petitioner to refund a sum of Rs.19,41,280/- which was initially paid by the respondent to the petitioner pursuant to the purchase order. The respondent had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plications provided by the petitioner and these defects had not been addressed by the petitioner. He submitted that although UAT Acceptance had been granted but the same was only a limited one. It is further submitted on behalf of the respondent that there were issues both prior to the issuance of UAT clearance as well as post issue of the said clearance. It is on account of these issues that the amount claimed by the petitioner had been withheld. The learned counsel also pointed out that the system provided by the petitioner has been discontinued on account of various snags and is no longer operational. In the given circumstances, it is claimed that the respondent is entitled to a refund of the amount initially paid to the petitioner. 5. The learned counsel for the respondent also submitted that the present petition was filed in July, 2013 and was, therefore, clearly barred by limitation. The invoice raised by the petitioner is dated 14.05.2010 and the exchange of emails in June, 2010 clearly indicates that the respondent had declined to make the payments as demanded by the petitioner. In response to the said contention, the learned counsel for the petitioner has submitted that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isputes raised by the respondent are bonafide and contemporaneous to the claim made by the petitioner in 2010. The respondent has stated in its reply that the software applications provided by the petitioner are not being used on account of the defects. This clearly would raise a substantial dispute and in the circumstances it cannot be held that the disputes raised by the respondent are not bonafide. 9. The Supreme Court in the case of M/s IBA Heath (India) Private Limited v. Info-Drive Systems SDN. BHD: (2010) 10 SCC 553 has also explained that a dispute would be substantial if it is bonafide and not spurious, speculative, illusory or misconceived. The relevant extract from the decision is quoted below:- "20. The question that arises for consideration is that when there is a substantial dispute as to liability, can a creditor prefer an application for winding-up for discharge of that liability? In such a situation, is there not a duty on the Company Court to examine whether the company has a genuine dispute to the claimed debt? A dispute would be substantial and genuine if it is bona fide and not spurious, speculative, illusory or misconceived. The Company Court, at that stage, ..... 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