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2018 (11) TMI 1709

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..... 41,053/- (Rupees Eighty Two Lakhs Forty One Thousand Fifty Three Only) 2. Brief facts of the case, as stated in the Company petition, which are relevant to the issue in question, are as follows: (1) M/s. GupShup Technology India Pvt. Ltd. (Petitioner/Operational Creditor) is a Company in corporated under the provisions of the Companies Act, 1956. It is engaged in the business of providing messaging solutions/SMS services. (2) M/s. Interpid Online Retail Pvt. Ltd. (Respondent/Corporate Debtor) is a. Company incorporated on 17.01.2011. Its Authorised Share Capital is ₹ 6,55,00,000/- and Paid-up Capital is ₹ 5,60,00,000/-. It is engaged in the business of providing shopping website that hosts flash sales, etc. (3) Both the parties entered into an agreement dated 08.10.2014, which inter alia, contained as follows: a. The term of agreement is for a period of one year subject to further extension/termination. b. GupShup will send monthly invoices to the Customer for the Fees accrued in the previous month in accordance with the terms set out in Schedule 3. Customer shall verify the invoices from GupShup, and thereafter pay such valid invoices within fifteen (15) Business Days. .....

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..... therein. However, the Petitioner has not provided any supporting documents nor responded to the Settlement Agreement, and instead issued a legal notice by making various baseless claims and false allegations. The Petitioner has filed the instant Petition by abusing the process of law as the fast-track proceedings prescribed under the IBC, which is meant for the benefit of bona fide creditors. However, the Petitioner is using it to harass and arm-twist the Petitioner to come to terms. The Respondent issued an e-mail dated 05.09.2017 to the Petitioner requesting to provide them with the details in relation to the services availed from them. The following details were asked: i. Details of services provided to us from 08.10.2014 onwards, including an exhaustive list of the SMSs and Emails sent (basis our request) during the said period; ii. Details of the payments made by us during the period from 01.04.2014 to till date, including copies of your invoices; iii. Copy of GupShup's licenses and permits in relation to provision of the services; and iv. Details in relation to the filing made with TRAI and royalty payments in relation to the services. c. The Petitioner intentionally ign .....

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..... is filed on 11.01.2018 by intentionally suppressed this information about the receipt of the reply. In this reply also, they have also raised specific dispute with regard to alleged claim. Therefore, they have urged the Tribunal to dismiss the petition with costs. 3. Heard Shri Biju T.M, Learned Counsel for the Petitioner, and Ms. Anisha Aatresh, Learned Counsel for the Respondent. We have carefully perused the pleadings of both the parties, and also extant provisions of the Code and Rules made thereunder. 4. Shri Biju T.M, Learned Counsel for the Petitioner, while pointing out various contentions raised in the Company Petition, and the documents, has further pointed out that after delaying the matter to settle the issue for more than two years, the Respondent again trying to delay the proceedings. The Respondent came out with a story they were going for a winding up and thus requested to accept a payment of ₹ 31,00,000/- (Rupees Thirty One Lakhs Only), instead of total outstanding amount of ₹ 57,86,148/- (Rupees Fifty Seven Lakhs Eighty Six Thousand One Hundred and Forty Eight Only) plus interest @ 1.5% per month.The petition is filed within limitation as the first de .....

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..... h respondent paid ₹ 16,22,229/- and the remaining outstanding balance was 57,86,148/-. The Respondent vide its e-mail 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 Reference Number Amount (Rs.) 31/10/2014 CRM/POST/Oct/14-15/240 197,749 30/11/2014 CRM/PRE/2014/11/00038 885,860 30/11/2014 CRM/POST/Nov/14-15/023 730,513 31/12/2014 CRM/POST/DEC/14-15/015 1,067,965 31/12/2014 CRM/POST-EMAIL/14-15/DEC/0013 825,615 31/01/2015 CRM/POST/Jan/14-15/259 1,974,642 04/02/2015 CRM/PRE/2015/02/00006 704,618 28/02/2015 CRM/POST/Feb/14-15/259 1,482,916 28/02/2015 CRM/POST-EMAIL/14-15 879,869 31/03/2015 CRM/POST/Mar/14-15/247 2,446,308 31/03/2015 CRM/POST-EMAIL/14- 15/MAR/0007 931,952 30/04/2015 .....

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..... ptly within 7 business days from the date of receipt of invoice by recourse of the finance team @ Invoice@gupshup.io, else any or all disputes shall be void and will not be entertained under any circumstances. 4. Undisputed amounts shall be paid within due date. 5. Company shall not be liable for any special, indirect or consequential damages of whatsoever nature. 6. Company reserves the right at any time to suspend or change credit terms provided herein or require full/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 ho .....

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