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TMI Blog2019 (11) TMI 1536X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided the Point of Sales Swipe Machines for facilitating credit card, debit card and other digital payments for its business. The Petitioner in consideration of the services provided by the Corporate Debtor agreed to pay fees in accordance with the terms of the agreement entered into by the Petitioner and the Corporate Debtor. 3. As per the terms and conditions of the agreement, the Corporate Debtor would send statement of account to the Petitioner, wherein after deducting the charges payable for the services availed by the Petitioner, the Corporate Debtor will pay the amount collected through the swipe machines to the Petitioner. Accordingly, the Petitioner kept on swiping the swipe machine given by the Corporate Debtor and the Petitioner has been getting back the amount from the Corporate Debtor after deduction of fees levied by the Corporate Debtor. 4. The Petitioner submits that the Corporate Debtor was not deducting Merchant Discount Rate (MDR) from the amount collected through swipe transactions from the beginning till 23.09.2018 but all of sudden on 26.09.2018 the Corporate Debtor deducted an amount of Rs. 19,06,191/-. 5. The Petitioner sent the statutory demand notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the warranties specified in this application." (d) It is pertinent to state and clarify that by virtue of the terms of the Agreement and pursuant to the understanding hereinabove that your client has authorized our client to deduct such MDR due and payable, from the transaction amounts to be remitted to your client, without any further notification or intimation. Our client further states that, due to a technical error in its system, our client was unable to recover the entire amounts of MDR due to it from your client for a period between July 2018 to September 2018. Upon discovery of the glitch in the system, our client had deducted an amount of Rs. 19,05,679/- (Rupees Nineteen Lakhs Five Thousand Six Hundred and Seventy-Nine only) ("Deducted Amount") from the transaction amounts remitted to your client being MDR payable by your client. (e) However, to our client's utter shock and surprise, your client has denied the legitimacy of our client's claims as per the terms of the agreement, and denied any payment to be made to our client on a false, frivolous and baseless pretext that amounts were due to be paid by our client to your client. Our client states that MDR i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the period between July, 2018 to September, 2018 and upon discovery of the glitch in the system a sum of Rs. 19,05,679/- was deducted from the transaction amount payable to the Petitioner and the same was informed to the Petitioner vide emails dated 26.09.2018 and 29.09.2018 and submitted that the Petitioner had enclosed these said emails in the Petition at page number 20. e. The MDR is applicable on all transactions made through the Corporate Debtor's POS machines, all transactions were managed and facilitated in accordance with Corporate Debtor's standard terms and conditions to which all merchants agreed to be bound by including the Petitioner, therefore the amount deducted from the transaction amount are towards legitimate fees arising out of contractual obligations. f. The Corporate Debtor submits that the MDR deducted by the Corporate Debtor from the amount payable to the Petitioner is not a claim as defined under the Code, since there is no liability or obligation on the part of the Corporate Debtor to pay such amount to the Petitioner. It is further submitted that the Petitioner is a merchant who is recipient of service provided by the Corporate Debtor for whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p will happen and accordingly the parties entered into the terms and started doing business, hence the submissions of the Petitioner are false and misleading. 11. It is beneficial to refer the email sent by the Petitioner on 29.09.2018 wherein it was stated as below: "Dear team Pls provide the copy of the agreement which is signed by us with these terms & conditions that's are telling by you. Secondary whatever are you paid about that are not our problem. Due to your system fault why we have to paying these MDR and where we covered. As per RBI guideline if any type of MDR you have to charge. You have give the information to the merchant firstly them merchant is agreed so you have to right to apply any kind of MDR. On this why you are not telling in the start of business. Now you are saying we have charge the MDR @1.90% + GST. Note: please tell us which bank platform you are used to accept the money Thank you." The above email confirms the fact that the Petitioner has signed the agreement, hence the argument of the counsel for the Petitioner that there is no agreement cannot be accepted. 12. Admittedly the Petitioner sent the demand notice to the Corporate debtor on 19.12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC Online SC 1154) held as below: - "40 Therefore, all the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the "dispute" is not a patently feeble legal 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" 15. 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. 16. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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