TMI Blog2019 (7) TMI 1426X X X X Extracts X X X X X X X X Extracts X X X X ..... y Appeal (AT) (Insolvency) No. 23 of 2019 - - - Dated:- 25-7-2019 - Mr. S. J. Mukhopadhaya Chairperson , Mr. A.I.S. Cheema Member (Judicial) and Kanthi Narahari) Member (Technical) For Appellant: Shri Jai Sahai Endlaw and Mr. Shivansh Soni, Advocates. For Respondent: Ms. Anushka Sharda and Mr. Rohit Ghosh, Advocates. JUDGMENT M/s Gupshup Technology India Pvt. Ltd. (Operational Creditor) filed application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as I B Code ) against M/s Interpid Online Retail Pvt. Ltd. ( Corporate Debtor ) which having rejected by Adjudicating Authority (National Company Law Tribunal), Bengaluru Bench, Bengaluru by order dated 8th November, 2018, the present appeal has been preferred by the Appellant. 2. According to the Appellant it entered into Agreement with Respondent M/s. Interpid Online Retail Pvt. Ltd. on 8th October, 2014. The Agreement was for a period of one year and as per Clause 3.2 of the Agreement, it would get auto renewed for further period of one year each unless terminated by either party. As per Clause 4.2 of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted if the Application/Petition is filed under Section 9(2), there is no repayment of unpaid Operational Creditor, no notice of dispute has been received by the Operational Creditor, etc. As stated supra, admittedly, the Petitioner got issued a legal notice dated 11.10.2017 by claiming for ₹ 57,86,148/- consisting of five invoices starting from 31.05.2015 to 31.07.2015 claiming for total amount of ₹ 74,08,377/-. Out of which respondent paid ₹ 16,22,229/- and the remaining outstanding balance was 57,86,148/-. The Respondent vide its email dated 5th September, 2017, requested the petitioner to furnish supporting documents in support of its claim, followed by specific reply dated 24th October, 2017 to the above legal notice, by inter alia, raising dispute of claim. 8. Subsequently, the petitioner got issued Demand Notice dated 24.10.2017 in Form 3 under Rule 5 of I B (AAA) Rules, 2016, by demanding the respondent to pay the outstanding of ₹ 82,41,053/-. In support of its claim, they have enclosed Annexure-1 which contains the following details of claim: Invoice Date Invoice Refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CRM/POST-EMAIL/15-16/JUN/0008 1,180,077 31/07/2015 CRM/POST-EMAIL/15-16/JUL/0007 308,497 31/07/2015 CRM/POST/JUL/15-16/330 594,243 31/08/2015 CRM/POST-EMAIL/15-16/AUG/0007 121,391 31/08/2015 CRM/POST/Aug/15-16/354 34,332 TOTAL AMOUNT (A) 24,819,206 (B)Total Payments Received Against the Invoices ₹ 19,033,058/- Total Amount Due (A) 24,819,206 Total payments received against the Invoices (B) 19,033,058 Total Unpaid Amount (C) 5,786,148 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll/partial payment in advance, if in, company s opinion, the financial condition of buyer so warrants. 12. As detailed supra, there is a bona fide dispute exist in respect of alleged debt. Moreover, the amount itself is under dispute, the Petitioner himself stated that the Respondents are prompt in payment till 2014 and thereafter, committed default. Therefore, instead of settling their issues in terms of the Agreement mentioned supra, the present Company Petition is filed by seeking to recover the disputed amounts rather than to initiate appropriate Civil Proceedings. As per Demand Notice issued under the Code, the first default arise on 31.10.2014 and the present petition was filed in January 2018 as to how petition is filed within limitation as prescribed under the Act. 9. The Adjudicating Authority held that the claim is barred by limitation and there is existence of dispute. 10. On notice, the Respondent has appeared and filed reply affidavit. But learned Counsel for the Respondent failed to produce before the Appellate Tribunal any letter or email to suggest that a dispute was raised about the SMS services prior to the issue of Demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ider invoices and payments details, along with a certificate from Haribhakti Co., LLP that they are satisfied that the relevant material provided for the review is sufficient to support the invoices issued by Gupshup to our client to enable our client to verify the invoices and request Haribhakti Co. LLP to remit the amount to Gupshup. 12. In the present case, the Respondent has not disputed that the Appellant has provided text SMS services to the Respondent through internet. The Respondent has availed the services pursuant to the contract in question from time to time till the Appellant terminated the services. 13. The Hon ble Supreme Court in Innoventive Industries Ltd. Vs. ICICI Bank and Ors. (2018) 1 SCC 407 observed and held as follows:- 27. The scheme of the Code is to ensure that when a default takes place, in the sense that a debt becomes due and is not paid, the insolvency resolution process begins. Default is defined in Section 3(12) in very wide terms as meaning non-payment of a debt once it becomes due and payable, which includes non-payment of even part thereof or an instalment amount. For the meaning of debt , we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portant. This it must do within 14 days of the receipt of the application. It is at the stage of Section 7(5), where the adjudicating authority is to be satisfied that a default has occurred, that the corporate debtor is entitled to point out that a default has not occurred in the sense that the debt , which may also include a disputed claim, is not due. A debt may not be due if it is not payable in law or in fact. The moment the adjudicating authority is satisfied that a default has occurred, the application must be admitted unless it is incomplete, in which case it may give notice to the applicant to rectify the defect within 7 days of receipt of a notice from the adjudicating authority. Under sub-section (7), the adjudicating authority shall then communicate the order passed to the financial creditor and corporate debtor within 7 days of admission or rejection of such application, as the case may be. 29. The scheme of Section 7 stands in contrast with the scheme under Section 8 where an operational creditor is, on the occurrence of a default, to first deliver a demand notice of the unpaid debt to the operational debtor in the manner provided in Section 8(1) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid provision of the Limitation Act, it is clear that the application is maintainable within three years from the date when the right to apply accrues. Since, the Insolvency and Bankruptcy Code, 2016 has come into effect since 1st December, 2016, we hold that the application is not barred by limitation. 18. So far as the claim of the Appellant is concerned, it cannot be argued that the claim is barred by limitation and, therefore, no debt is payable in the eyes of law. The Respondent defaulted in making payment towards the invoices for the first time on 16th June, 2015 and by email dated 5th September, 2017 sought details of email logs and other supporting documents in order to verify the invoices for payment. Since, a Legal Notice was issued by the Appellant on 11th October, 2017 and a Demand Notice under Section 8(1) on 24th October, 2017, we hold that the claim of the Appellant is not barred by limitation. 19. The Adjudicating Authority while passing the order, failed to appreciate the facts and erroneously held that there is a pre-existing dispute and the claim is barred by limitation. 20. For the reasons aforesaid, we set aside the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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