TMI Blog2021 (3) TMI 988X X X X Extracts X X X X X X X X Extracts X X X X ..... BURAJ, Member (Technical) Counsel for Applicant: Mr. Srinivas Kotni, Mr. Shantam Gorawara and Mr. Akshay Kumar, Advocates. Counsel for Respondent: Ms. Purnima Maheshwari and Mr. Alok Gupta, Advocates. ORDER This is an application filed by the Applicant JIL Information Technology Limited through its Authorized Representative Ms. Sunita Joshi seeking to initiate corporate insolvency resolution process ( CIRP ) under Section 9 of the Insolvency and Bankruptcy Code 2016 ( the Code') of the Respondent Qi Network Enterprises Private Limited for the alleged default on the part of the Respondent in clearing the debt of ₹ 97,73,307/-(Rupees Ninety-Seven Lakh Seventy-Three Thousand Three Hundred Seven only), as alleged by the applicant, towards the material supplied by the Applicant. The details of transactions leading to the filing of this application as averred by the Applicant are as follows: i. The applicant submits that on 18.02.2017, National Informatics Centre Services Inc. ( NICSI ) received an order from the Indian Institute of Technology, Ropar ( IIT Ropar ) and on that basis, NICSI issued a purchase order to the Respondent out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Ninety-Eight Thousand Nine Hundred and Sixteen only) remained payable to the Applicant. vi. The applicant submits that a credit note was issued in favour of the Respondent for the amount of ₹ 15,50,000/- on 07.05.2018. Thereafter, the Respondent made a further payment of ₹ 24,75,609/- to the Applicant on 14.05.2018, Hence, as alleged by the applicant the cumulative amount of operational debt due to be paid by the Respondent is ₹ 97,73,307/-. vii. The applicant stated that the Respondent sent a letter dated 18.07.2018 to the applicant and terminated the purchase orders. viii. That the applicant sent a Legal Notice dated 30.05.2019, in response to which it received a reply from the Respondent dated 25.06.2019, applicant further submitted that multiple requests were made to the Respondent regarding unpaid debt. ix. That applicant submits that a statutory Demand notice under section 8 of IBC, 2016 vide dated 15.01.2020 was delivered to the Respondent. It was further submitted by the applicant that a reply wrongly dated 15.01.2020 received by applicant on 20.01.2020 from the Respondent wherein, the Respondent stated the existence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent further submits that the stipulated time schedule for completion of work was delayed to the satisfaction of IIT Ropar (end buyer). vi. The Respondent stated that payment of ₹ 1,24,21,990/- dated 29.09.2017 and ₹ 24,75,609/- dated 14.05.2018 has been made to Applicant and a balance payment of ₹ 6,79,400/- is payable to Applicant which was asked to be collected. That the applicant in the rejoinder notice 26.08.2019 stated that it would not settle for anything less than what was demanded and did not collect the same. The Respondent states that it is willing to pay the balance amount of ₹ 6,79,400/. 3. The Counsel for the Applicant has filed its written submissions in respect to the submissions made in the application: That the Supreme Court in Mobilox Innovations Private Limited VS. Kirusa Software Private Limited [ PARA 24, 40 AND 45 ]., wherein, it was held that the dispute raised should be pre-existing (i.e., it should exist before the receipt of the demand notice or invoice). That the dispute should be real and not a sham, frivolous, vexatious, spurious or a mere bluster. That the Hon'ble NCLAT in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n respect to recovery of its dues which was duly replied by the Corporate Debtor vide its reply dated 25.06.2019 stating that the amount claimed by the Operational Creditor is disputed owing to non- performance of 5 Purchase orders. 8. It is further pertinent to mention that the deficiency in services was raised by the Corporate Debtor in the Email Trail communication vide dated 01.02.2018, 21.05.2018, 28.05.2018 and 14.06.2018 between the Operational creditor and Corporate Debtor. Secondly, the Termination Letter dated 18.07.2018, wherein the Corporate Debtor terminated the 5 Purchase orders owing to Non-performance of contract and finally the Legal Notice delivered dated 30.05.2019 clearly establishes the fact that there was pre-existence of Dispute between both the parties prior to the issuance of demand notice. 9. The Hon'ble Supreme Court In Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P) Limited- 2017 1 SCC On Line SC 353 , analyzed the meaning of dispute with respect to Operational Creditors and observed: 33. The scheme under Sections 8 and 9 of the Code, appears to be that an operational creditor, as defined, may, on the o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
