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2018 (11) TMI 1709

..... plication to Adjudicating. Authority) Rules, 2016 - existence of debt or not - HELD THAT:- The petitioner failed to substantiate undisputed debt and also failed to prove that it is not recovery proceedings and the petition is within limitation. Petition rejected. - CP (IB) No. 25/BB/2018 - 8-11-2018 - RAJESWARA RAO VITTANALA, JUDICIAL MEMBER AND DR. ASHOK KUMAR MISHRA, TECHNICAL MEMBER For the Petitioner : Biju T.M. For the Respondent : Ms. Anisha Aatresh. ORDER Rajeswara Rao Vittanala, Judicial Member. - C.P.(IB)No.25/BB/2018 is filed by M/s. GupShup Technology India Private Limited, under Section 9 of the IBC, 2016, read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating. Authority) Rules, 2016, against M/s. Interpid Online Retail Pvt. Ltd., on the ground that the Corporate Debtor committed a default of ₹ 82,41,053/- (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. .....

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..... ). Whereas, in the subsequent Demand Notice dated 24.10.2017, it claimed ₹ 82,41,043/- (Rupees Eighty Two Lakhs Forty One Thousand and Forty Three Only). b. The Respondent as a law-abiding corporate entity and was willing to pay the verifiable due amounts, and it was also informed to the Petitioner. Accordingly, after discussions, the Petitioner agreed to reduce its claims and weed out excessive charges, and charge only for those transactions, which the Petitioner could prove with supporting documents. Therefore, a draft Settlement Agreement was prepared on 02.08.2017 (which is enclosed to the reply), which inter alia states that the Respondent agrees to pay the Petitioner an amount of ₹ 31,00,000/- on or before 02.08.2017 and a Cheque No.009469 dated 02.08.2017 drawn on HDFC Bank Ltd, Gandhi Bazar. Bangalore, is also mentioned 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 i .....

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..... ssed its inability to verify genuineness of the Invoices raised by the Petitioner. It is also expressed it readiness for negotiations, amicable and reasonable settlement of the issues in good faith. And willingness to deposit the entire agreed full and final settlement sum of ₹ 31,00,000/- (Rupees Thirty One Lakhs Only) in escrow with Haribhakti & Co. LLP, who are GupShup's Statutory Auditors, to be paid out of GupShup providing to all relevant material, including delivery logs, receipts and reports, telecom service provider invoices, and payment details. f. The Petitioner also suppressed the reply dated 03.11.2017 issued by the Respondent, in response to the demand notice dated 24.10.2017. The reply is sent by the Registered Post Acknowledgement Due and proof of the service is also enclosed to the reply. The Company Petition 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, .....

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..... Agreement, the Petitioner has filed the instant Company Petition without submitting the necessary verifiable documents to settle the issue. Therefore, there is a clear and bona fide dispute exists in the instant case so as to bar this Tribunal to entertain the Petition. Therefore, the learned counsel urged the Tribunal to dismiss the petition. 7. As per the provisions of Section 9, an application can be admitted 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 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 cla .....

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..... ring the period from 10.12.2014 to 28.4.2017.-It is also not known whether the alleged outstanding amount as per the demand has been paid or not. In any case, it is not in dispute that Respondent is paying it dues in part and fell due for some amount, subject to re-conciliation of accounts and proof. So the instant case is filed to recover the alleged remaining outstanding amount from the Respondent. It is settled position of law that object of Code is not recovery proceedings. 11. All Tax Invoices raised by the petitioner contains following general conditions for payment which reads as under: "1. All invoices are due and payable within 15 days from date of invoice. 2. Int. shall be accrued @ 18% to unpaid invoices, after 15 days. 3. Any question, dispute or invoices, charges, logs, and any relating queries thereon must be raised promptly 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 w .....

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