TMI Blog2018 (11) TMI 1709X X X X Extracts X X X X X X X X Extracts X X X X ..... btor 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. 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 thereaf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easonable 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, Learned Counsel for the Respondent. We have carefully perused the pleadings of both the parties, and also extant provisions of the Code and Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Interest @ 1.5% till 24.10.2017 (D) 2,454,905 Total Amount to be Claimed in Default (E) 8,241,053 9. As stated supra, as per the legal notice dated 11.10.2017, outstanding amount was ₹ 57,86,148/- (Rupees Fifty Seven Lakhs Eighty Six Thousand One Hundred Forty Eight Only). The claims made in the legal notices and demand notice are different. As per the above Demand notice dated 24.10.2017 claim starts from 31.10.2014 for total claim of ₹ 82,41,053/- as default, whereas the previous legal notice dated 08.10.2014 says ₹ 57,86,148/as outstanding amount. 10. The ICICI Bank Certificate dated 12.12.2017 (which is filed along with C.P. (Annexure-E) certified that an amount of ₹ 1,75,37,476/- (Rupees One Crore Seventy Five Lakhs Thirt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will apply to proceedings or appeals before NCLT/NCLAT. Section 238A of the Code make provisions of Limitation Act would apply to proceedings under the Code. As stated supra, debt in question fell on various dates on and after October, 2011, and there is no explanation for the laches and delay on the part of the petitioner. 14. The Hon'ble Supreme Court of India, in a recent case, in Mobilox Innovations (P.) Ltd v. Kirusa Software (P.) Ltd. [2017] 144 SCL 37 (SC), has categorically laid down that IBC is not intended to be substitute to a recovery forum. It is also laid down whenever there is existence of real dispute, the IBC provisions cannot be invoked. In another latest judgment rendered in Transmission Corpn. of APLtd. v. Equipment Conductors and Cables Ltd. [2018] 150 SCL 447 (SC), it has, inter alia, held that existence of undisputed debt is sine qua non of initiating CIRP. As per para 34 of judgment, it is stated that Adjudicating Authority, while examining an application under Section 9 of Code, will have to determine: i. Whether there is an 'operational debt' as defined exceeding ₹ 1 lakh? ii. Whether documentary evidence furnished with the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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