TMI Blog2019 (11) TMI 1527X X X X Extracts X X X X X X X X Extracts X X X X ..... or to the demand notice dated 19.12.2019 issued by the Petitioner herein. Therefore, this bench is of the view that there is a plausible dispute raised by the Corporate Debtor and the petition is liable to be dismissed. The Petition is dismissed with liberty to the Petitioner to proceed accordance with law. - C.P. No. 2501/I&BP/2019 - - - Dated:- 7-11-2019 - Suchitra Kanuparthi, Member (J) and V. Nallasenapathy, Member (T) For the Appellant : Vijay Sharma For the Respondents : Chitrangada Singh, Adv. i/b Clove Legal ORDER Suchitra Kanuparthi, Member (J) Order pronounced on 22.10.2019 1. This company Petition is filed by Jain Sales (hereinafter called Petitioner ) seeking to set in motion the Corporate Insolvency Resolution Process (CIRP) against Mswipe Technologies Private Limited (hereinafter called Corporate Debtor ) alleging that Corporate Debtor committed default in making payment of ₹ 34,66,549/- by invoking the provisions of Section 8 and 9 of the Insolvency Bankruptcy Code (hereinafter called Code ) read with Rule 5 and 6 of Insolvency Bankruptcy (Application to Adjudicating Authority) Rules, 2016. 2. The Petition reveals that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ouse no. 108, 2nd floor, PKT-15, Sector-8, Rohini, north West, Delhi-110085 (hereinafter referred to as your client ) has agreed to avail our client's POS machine and transaction processing services by signing the merchant terms and conditions on December 26, 2017 ( Agreement ). As per the terms of the Agreement, in consideration of the transaction processing services by our client, your client had agreed to pay fees and merchant discount rate ( MDR ) with respect to each transaction processed through the POS machine in accordance with the terms of the Agreement. (c) Our client states that inter alia your client has agreed to certain provisions as are provided in the agreement which are reproduced herein below: In consideration of the transaction processing services the merchant agrees to pay to Mswipe, the Merchant Discount Rate as mentioned in the application and any further charges as detailed in the application and or these terms and conditions, which shall be deducted by Mswipe from the amounts payable to the merchant in respect of a transaction amount. Mswipe will be entitled at any time to set-off and adjust outstanding of the merchant, against all pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Petitioner agreed to pay fees and MDR in consideration of the transactions processed through the POS machines provided by the Corporate Debtor in accordance with the terms of the agreement. Further the amount of MDR chargeable on a particular valid card has been stated under the application made by the Petitioner to the Corporate Debtor read along with the merchant terms and conditions. b. The Petitioner is bound by the provisions of the agreement regarding payment and the same are as below: 16.1 in consideration of the transaction processing services the Merchant agrees to pay to Mswipe, the MDR (Merchant discount rate) as mentioned in the Application and any further charges as detailed in the application and or these terms and conditions, which shall be deducted by Mswipe from the amounts payable to the Merchant in respect of a transaction amount. 17.8 Neither the receipt by Mswipe of any transaction information nor any payment by or any act of omission by Mswipe (other than an express written acknowledgment or waiver there if by Mswipe) shall constitute or be deemed to constitute any acknowledgment or waiver of compliance by the Merchant with any of the warra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ims made by the Petitioner and the Corporate Debtor has made its claim prior to the issue of the demand notice and in fact the amount has already been deducted and hence the Petition is not maintainable. 8. The counsel for the Petitioner vehemently argued that the Corporate Debtor is not entitled to deduct MDR charges and accordingly was not deducting the MDR charges from the very beginning till 26.09.2018 but all on a sudden deducted an amount of ₹ 12,45,351/- and ₹ 22,21,197/- in violation of the terms and conditions without any prior notice to the Petitioner. It is further submitted that, even otherwise, the Corporate Debtor could not have deducted MDR after two days of settlement, in view of the fact that the Corporate Debtor imposed a disclaimer on the Petitioner while sending the statement of accounts that the Petitioner has to inform the discrepancy in the accounts within two days of receipt of statement sent by the Corporate Debtor to the Petitioner. Hence the two days' time limit will ipso facto apply to the Corporate Debtor also and the deduction made herein after a long period of settlement is not in order and the Petitioner is entitled to get back th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defense which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defense is likely to succeed. The court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application 14. When the law laid down by the Hon'ble Supreme Court in the above case is applied to the facts of the present case it is established that there is a clear dispute as to the amount claimed by the Corporate Debtor as provided u/s 5(6)(a) of the Code. 15. In the case on hand the contentions raised by the Corporate Debtor are neither spurious nor hypothetical nor illusory and in fact there is a dispute as to existence of the debt payable by the Corporate Debtor. 16. In the light of the above discussions, the Petition is dismissed with liberty to the Petitioner to proceed accordance with law. No cost. If the Petitioner approaches an appropriate forum for th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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