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TMI Blog2020 (10) TMI 442X X X X Extracts X X X X X X X X Extracts X X X X ..... 74900TN2010PTC078012 which was incorporated on 10.11.2010 and that its Authorised Capital and Paid up Capital is Rs. 3,00,00,000/- and Rs. 2,01,00,000/- respectively. The Registered Office of the Corporate Debtor as per the Application is stated to be situated at No. 3, Veeraswamy Street, West Mambalam, Chennai - 600 033. 3. Part - III of the Applicant discloses the fact that the Operational Creditor had not given the name of the IRP and left it to the discretion of this Tribunal. From Part-IV of the Application, it is seen that a sum of Rs. 61,28,920/- is being claimed by the Operational Creditor as Operational Debt from the Corporate Debtor. 4. Part V of the Application describes the particulars of the documents records and evidence of default of the Operational debt which include the following: a) Copy of the Purchase Order dated 18.03.2017 b) Copy of the Invoice dated 18.03.2019, 11.09.2017, 13.01.2019 c) Copy of the Legal Notice issued by the Operational Creditor dated 30.04.2018 d) Copy of the Reply notice issued by the Corporate Debtor dated 05.05.2018 e) Copy of the Plaint filed by the Corporate Debtor vide O.S. No. 2545 of 2019 before the City Civil Court, Chen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforesaid Invoice, the Corporate Debtor had paid a sum of Rs. 24,95,000/- and paid the balance sum of Rs. 3,74,250/- being the service tax on 29.06.2019. 7. The Learned Counsel for the Operational Creditor further submitted that the Operational Creditor had made a substantial study of the installation and customization to be done as per the requirement of the Corporate Debtor and requested the Corporate Debtor to equip their servers with Oracle Database prior to the installation of the "DOC 99" software, however as the Corporate Debtor has felt that it was not economically feasible for them, they sought for a relatively economical database to be installed in their servers which would support "DOC 99" software. Accordingly, the Corporate Debtor requested the Operational Creditor for setting up of PostgreSQL database on their servers and the Corporate Debtor agreed to make an additional payment of Rs. 6,00,000/- for customization of the same. Pursuant thereto, the customization of the "DOC 99" software was done in accordance with PostgreSQL database and the same was completed in the beginning of June 2017 and the said software was installed on the Corporate Debtor's server o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued a Legal Notice dated 30.04.2018 calling upon the Corporate Debtor to pay the Operational Creditor the outstanding due of Rs. 61,28,920/- with interest @ 24% p.a. and the Corporate Debtor upon receipt of the said Legal notice issued an evasive reply on 05.05.2018 without referring to the mutual understanding between the parties and raised a bogus counter claim. Thereafter, the Operational Creditor has issued a Demand Notice as mandated under Section 8 of the IBC, 2016 to the Corporate Debtor on 19.06.2018 and the Corporate Debtor has sent a reply to the same on 26.06.2018. 11. It is submitted by the Learned Counsel for the Operational Creditor, the Corporate Debtor with a sole object to circumvent the claim of the Operational Creditor has filed a frivolous Civil Suit vide CS No. 563 of 2018 before the Hon'ble High Court of Madras seeking for recovery of Rs. 37,45,000/- paid so far by the Corporate Debtor to the Operational Creditor on the basis of the Purchase Order dated 18.03.2017 and a sum of Rs. 25,00,000/- as damages to the Corporate Debtor. It has been submitted by the Learned Counsel for the Operational Creditor that the said suit has been filed vexatiously to pre-e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not completed the implementation of the software as required by the Corporate Debtor at the time of placing the work order and also point out certain lapses which are attributable on the part of the Operational Creditor in completion of the installation of the "DOCC 99" Software and the same was not done to the satisfaction of the Corporate Debtor. A perusal of the reply Legal notice dated 05.05.2018 issued by the Corporate Debtor to the Operational Creditor would show that the Corporate Debtor has raised ample issues in relation to the installation of the software by the Operational Creditor, however in order to avoid prolixity, only some of them are extracted hereunder; ".........My client states that with regard to doctor's module, your client assured that your module will provide waiting patients information display, e-prescription, prescription combos, online diagnostic requests and results and medical history, both quick and detailed view, IT Admission and Management, OT management, contra-indication, drug alert, system suggested dosages, protocol based treatment and drug and drug pharmacology and the said work was not done by your client and the action of your client ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f any, or record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute; (b) the payment of unpaid operational debt- (i) by sending an attested copy of the record of electronic transfer of the unpaid amount from the bank account of the corporate debtor; or (ii) by sending an attested copy of record that the operational creditor has encashed a cheque issued by the corporate debtor. Explanation. - For the purposes of this section, a "demand notice" means a notice served by an operational creditor to the corporate debtor demanding payment of the operational debt in respect of which the default has occurred. In relation to the manner in which the above section is required to be construed, it is relevant to refer to the judgment of the Hon'ble Supreme Court in Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P) Limited; which held that the 'existence of dispute' and/or the suit or arbitration proceeding must be pre-existing i.e. it must exist before the receipt of the Demand Notice or Invoice as the case may be and observed as follows; "33. The scheme under Sections 8 and 9 of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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