TMI Blog2020 (3) TMI 1216X X X X Extracts X X X X X X X X Extracts X X X X ..... 018 had intimated the appellant/ operational creditor that the payments were not received and that the same could not be received from SRS in as much as the customer was not reachable and in bad shape and that they had not received any payment from the customer till date. When the respondent had disputed the debt and the same being not payable by it, because of the reason that the purchase order and commercial proposal was executed between the operational creditor being a reseller of Microsoft programme and SRS group of companies and further as a collecting agent, the respondent in the considered opinion of this Tribunal cannot be held liable for the outstanding amount. In the present case, the claim of the appellant as an operational creditor does not fit within the purview of the definition of the term of operational debt under section 5(21) of the I and B Code on account of the fact that it was neither against any goods purchased by the respondent nor against any services availed by it. In the absence of any material to fasten the liability on the respondent by virtue of the terms of the purchase order, which was not addressed to the respondent the appellant/applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the present appeal. 4. Taking into consideration the fact that the applicant/appellant has come out with the reasons in the interlocutory application that due to intervention of summer vacation and bereavement in the family of its learned counsel that the copy of the impugned order was collected in July, 2019 and after indulging in internal deliberations it took some time to approach this Tribunal, after the prescribed period of 30 days under section 61(2) of the I and B Code for filing of an appeal had lapsed and that apart the present appeal having been filed within the period of 15 days as prescribed under the proviso to section 61(2) of the I and B Code ; this Appellate Tribunal by taking a lenient, liberal, meaningful and purposeful view and also after being successfully satisfied with the reasons ascribed for the delay in question, allows the interlocutory application without costs, in furtherance of substantial cause of justice. 5. The appellant/ operational creditor /applicant has focussed the present Company Appeal (AT) Insolvency No. 780 of 2019 as an affected person in respect of the impugned order dated June 11, 2019 passed by the Adjudicating Authority ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 5(6) which is reproduced below : 'Dispute' includes a suit or arbitration proceedings relating to- (a) the existence of the amount of debt ; (b) the quality of goods or service ; or (c) the breach of a representation or warranty. and ultimately came to the conclusion that there was no establishment of operational debt against the corporate debtor which comes within the definition of dispute as per section 5(6) of the I and B Code and dis missed the application. 7. Learned counsel for the appellant submits that the appellant being an authorised reseller of Microsoft (India) P. Ltd., for supply of Microsoft licenced programme had submitted a proposal to the respondent on December 23, 2015 in regard to the Microsoft Licenced Programme and that on December 30, 2015 a purchase order was sent by the respondent through e-mail to the appellant. 8. Learned counsel for the appellant brings to the notice of this Appellate Tribunal that the purchase order was issued by one SRS Real Infrastructure Ltd. to the appellant, appointing the respondent as party on whom invoices would be raised by the appellant. Also, it is represented on behalf of the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent through e-mail dated January 11, 2018. 12. The grievance of the appellant is that the respondent was required to make 50 per cent. of the advance payment and the balance 50 per cent. was to be paid within 30 days neither of which paid so far (had not paid the same). Apart from that, the respondent had stopped payments for the reasons best known to it and resultantly a sum of ₹ 39,53,609 remained unpaid as per invoice dated January 17, 2018. 13. Learned counsel for the appellant emphatically contends that the respondent and the appellant had spoken telephonically in regard to payment schedule on February 12, 2018 and that the respondent had exchanged the existence of debt and its inability to provide a time line for payment as per e-mail dated March 23, 2018. Further, the aforesaid e-mail clearly showed the admission liability of the respondent to make payments to the appellant and the respondent had delayed the payment for no good reason, notwithstanding the fact, that the appellant had made a request in this regard. 14. Learned counsel for the appellant submits that the respondent intentionally began to avoid the calls and also not responded to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d further, it is the contention of learned counsel for the respondent that the arrangement in view of the aforesaid purchase order dated December 30, 2015 was valid only for a period of one year, i. e., 2016 and no purchase order was ever delivered or provided to the respondent by the appellant. Viewed in this perspective, the respondent pleads that it cannot be held liable to pay any amount. 21. Learned counsel for the respondent contends that the respondent through the e-mail dated March 23, 2018 had intimated to the appellant that the payments were not received from the customer SRS and that the initiation of dispute relates back to the year August, 2016 and hence, it was unable to forward the payment to the appellant. 22. Learned counsel for the respondent comes out with a legal plea that the appellant's claim does not fall within the ambit of the definition of operational debt under section 5(21) of the I and B Code, 2016 as the same is neither against any goods purchased by the corporate debtor nor is against any service availed by the corporate debtor . Besides this, the purchase order relied upon by the appellant was not addressed in favour of the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the arrangement between the appellant and respondent was valid only for a period of one year as the purchase order was only for the first year and more importantly, there was no purchase order after the said year was ever delivered, provided or given to it by SRS. 29. It is also the stand of the respondent in the reply notice dated May 17, 2018 that the notice on the company in Form 4 cannot be said to be a demand notice under section 8(1) of the I and B Code. 30. As seen from the invoice dated January 17, 2018 of the appellant addressed to the respondent a sum of ₹ 39,53,609 was the amount that remained unpaid according to the appellant. The respondent had sent an e-mail addressed to the appellant wherein the GSTIN Number was mentioned. It is represented on behalf of the appellant that the e-mail correspondence dated August 8, 2016 and September 5, 2016 are not related to the appellant. 31. It is to be borne in mind that section 5(20) of the I and B Code defined operational creditor means a person to whom the operational debt is owed and includes any person to whom such debt has been legally assigned or transferred. Section 5(21) of the I and B Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of corporate insolvency resolution process under section 7 or 9 is not akin to recovery proceedings. In deciding whether to admit or rejects the application either under section 7 or 9 of the I B Code, the Adjudicating Authority is not to take into account the reasons for the corporate debtor's default. Moreover, the Code cannot be pressed into service as a substitute for debt enforcement procedure. 35. In the foregoing detailed discussions and also this Tribunal taking into account the vital fact that the respondent in its reply notice dated May 17, 2018 had disputed the claim of the appellant and its liability to pay, etc., by raising serious bona fide factual pre-existing disputes, which requires an in depth examination/investigation and the said disputes which cannot be gone into any summary proceedings under the I and B Code, it is held by this Tribunal that the application filed by the appellant as an applicant before the learned Adjudicating Authority is not maintainable in the eye of law. Consequently, the appeals fail and the same is dismissed without costs. Before parting with the case, it is made clear that dismissal of application filed by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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