TMI Blog2019 (11) TMI 1533X X X X Extracts X X X X X X X X Extracts X X X X ..... of Code cannot be invoked for recovery of outstanding amount but it can be invoked to initiate CIRP for justified reasons as per objective of the Code. The Hon'ble Supreme Court in the case of Mobilox Innovations Private Limited vs. Kirusa Software Private Limited, [ 2017 (9) TMI 1270 - SUPREME COURT ] has inter alia, held that IBC, 2016 is not intended to be substitute to a recovery forum. The Petitioner failed to prove its case so as to initiate CIRP in respect of the Corporate Debtor. Therefore, the Petition is liable to be dismissed by granting liberty to the parties to settle the issue and also granted liberty to the Petitioner to approach appropriate Civil Court for the remedy, in accordance with law. Petition dismissed. - C.P. (IB) No. 82/BB/2019 - - - Dated:- 13-11-2019 - Rajeswara Rao Vittanala, Member (J) and Ashutosh Chandra, Member (T) For the Appellant : Varun Tallam For the Respondents : Manjunatha B. ORDER Rajeswara Rao Vittanala, Member (J) 1. C.P. (IB) No. 82/BB/2019 is filed by M/s. Shyam Spectra Private Limited (formerly known as M/s. Citycom Networks Private Limited) (hereinafter referred to as 'Petitioner/Operational Cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aining to the above mentioned account from 11.01.2016 till 15.12.2017 for an amount of ₹ 30,51,379.75/-. The Operational Creditor has been maintaining the account of transaction for the aforesaid services account as a running account for all the transactions pertaining to the said account and the debt fell due on 27.11.2017, which is after the expiry of 15 days from the date of the last invoice bearing No. TN/17-18/000909 dated 11.11.2017 with respect to the aforesaid Account No. 9022685. Accordingly, the Operational Creditor made a part payment of ₹ 13,48,856.94/-. After deducting the part payment made by the Corporate Debtor, the amount which was due and payable by the Corporate Debtor was ₹ 17,02,522.81/-. (5) It is also stated that the Operational Creditor issued certain credit notes to the Corporate Debtor, amounting to ₹ 4,35,319.55/- and thus an amount of ₹ 12,67,203.26/-(Rupees Twelve Lakh Sixty Seven Thousand Two Hundred Three and Twenty Six Paisa only) was due and payable after deducting the credit notes. The Corporate Debtor has deducted ₹ 20,483.94/- towards TDS on the account No. 9022685. However, even after deducting the afores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is also contended that on issuance of work order/purchase order to the Operational Creditor for the service of providing high end internet bandwidth, the Operational Creditor started providing services only from 06.04.2016, and in turn, the Corporate Debtor distributed the internet to retail users as per the requirement of the individual/office customers at Chennai. As per Purchase order, the Operational Creditor through installed the link during January 2016. However, the link started functional and usage started only from 06.04.2016. Unless the link or services of the Operational Creditor put on usage or the link started functioning, the Operational Creditor cannot raise invoice or demand for payment for the period for which the Link itself not operational or functional and in turn the Corporate Debtor made business from the services of the Operational Creditor. In the instant case, though the Link activated/functioned only from 06.04.2016, but the Operational Creditor claiming bill from January 2016 itself. Hence, such claim cannot be sustainable. In this regard, there are various correspondence made between the parties. But still the Operational Creditor claiming the amount f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary 2016 to April 2016 (installation and activation period) and from 12.12.2016 to 02.02.2017 due to Vardha Cyclone' at Chennai, there was complete bandwidth down. Regarding the same, the Corporate Debtor repeatedly raised complaints and requested the Petitioner to waive and issue Credit Notes for the said period. However, though an assurance given, the Petitioner without raising Credit Notes and by suppressing the issue of bandwidth down during the said period claiming the amount as if they have provided good and uninterrupted service. Due to deficiency in the service, the Corporate Debtor sustained huge loss and the same was also admitted by the Operational Creditor. However, for the reasons best known, the Operational Creditor not mentioned the grievance and genuine reasons. (7) In regard to allegation of dishonour of cheques, it stated that the Corporate Debtor continuously demanding for payment and threatening to stop the service and in order to retain its, the Corporate Debtor issued cheque with clear instructions to the Accounts team of the Operational Creditor to present the cheque only after instructions and inform about presentation of cheque at least one week in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but to no avail. Therefore, the Corporate Debtor urged the Adjudicating Authority to dismiss the Company Petition to save the Company and its low-paid employees from unemployment. 7. It is to be pointed that the initial Customer Agreement Form, filed as Annexure C (page 21 to 24 with Petition) which is basic document for the instant cause of action, is not properly executed. And particulars of the parties are not mentioned therein except the Authorised Signatory for M/s.Micronova Network Solutions Private Limited. All the material columns are left blank. Therefore, it is very difficult to accept the legal validity of this Agreement under summary proceedings contemplated under the provisions of the Code and veracity of this document can be examined in a Civil Proceedings by adducing appropriate evidence. The Respondent also admittedly paid part payment for the service rendered by the Petitioner and they have also raised several times with regard to the deficiency of the service made by the Petitioner. However, the Petitioner failed to take appropriate steps to rectify the service and instead used to threaten to initiate the instant proceedings. It is also relevant to point out he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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