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TMI Blog2018 (10) TMI 1903X X X X Extracts X X X X X X X X Extracts X X X X ..... vency and Bankruptcy Code, 2016 read with Rule 6 of I & B (Application to Adjudicating Authority) Rules, 2016, by inter-alia seeking to initiate Corporate Insolvency Resolution Process (CIRP) in respect of Pearson Education Services Private Limited (Corporate Debtor), on the that Corporate Debtor has failed to pay an outstanding amount of Rs. 64,21,380/ (Rupees Sixty four Lakhs Twenty one thousand three hundred and eighty only). 2. Brief facts of the case, which are relevant to the issue in question, are as follows: 1) Mr. Ajay Bhandari (petitioner/ Operational Creditor) is a Consultant who, inter-alia provides marketing services in relation to technological solutions being used in the education sector (including computer-based education ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as diligent in his work to promote the Respondent's products, and secured multiple orders for educational hardware from reputed clients. Accordingly, the Petitioner raised regular monthly invoices for his pro-rata commission, as agreed between the parties. Initially the Petitioner has issued a few invoices including taxes at 8%. However, after discussions between the parties, taxes were excluded from the subsequent invoices. 5) The un-paid operational debt pertains to the marketing commission amounts that are due to petitioner in relation to orders procured by the Petitioner for the Respondent from an end customer by name Kalgidhar Trust (Akal Academy). Three orders were secured by petitioner for the respondent vis-a-vis Kalgidhar Tru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he outstanding amount, first Demand Notice dated 22/03/2017 was issued to the respondent in relation to Order 3, and the second demand notice was issued on 8th June, 2017. And the respondent got issued reply on 20/06/2017 merely denying outstanding amount on un-tenable grounds. Therefore, the present petition is filed by seeking to initiate CIRP. 3. The Respondent has opposed the Petition by filing statement of objections dated 07.02.2018, and also additional affidavit dated 9.10.18 by inter-alia contending as follows: 1) There is a serious bonafide dispute with regard to alleged claims. Several material facts have been suppressed and all dues as per channel partner agreement have been paid to the petitioner. The petitioner has suppresse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concern and has 687 employees on its rolls as on July, 2018. It is providing educational support services to various schools in the country and some of schools namely Shishya BEML Public School and Johnson Grammar School. It is also carrying on business of developing and providing computer based education etc. As per the Balance sheet as on 31/03/2017, the Company is having current assets worth of Rs. 642,33,78,830/- and as at 31/03/2018, is Rs. 724,91,51,813/- and further the Reserves and Surplus as at 31/03/2017 is Rs. 360,68,97,414/- and as on 31/03/2018 it is Rs. 643,68,92,996/-. Therefore, the Respondent Company is commercially solvent Company. Since the Respondent has ready paid due amount to the petitioner as per the terms and condit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated supra, there are three agreements executed between the parties, The first one was on 29th August, 2011 for a period of 6 months, which expired in February, 2012, the second one was on 1st March, 2012 for a period of 6 months until August, 2012 and third and final agreement was executed on 7th November, 2013 for a period starting from 15th November, 2013 to 14th November, 2014. Admittedly, other Agreement dated 26.03.2013 was not signed and thus it has no legal sanction. And payment condition 6 % of total revenue, exclusive of taxes to the petitioner on successful promotion of products of respondent among its clients/ customer. All payments would be made on pro-rata to the money collected from the customer only, that too within 10 wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also for more than Rs. 643 crores, and earned total income for Rs. 43,684 lakhs for the year ended March, 31, 2018. Therefore, it is not the case of petitioner that the Respondent is commercially insolvent to pay its alleged dues. It is the case where the instant company petition do not lie under the provisions of Code. 9. The Hon'ble Supreme court in B.K. Educational Services Pvt. Ltd Vs. Prag Gupta and Associates (2018 SCC Online SC 1921), has inter alia held that provisions of Limitation Act will apply to proceedings or appeals before NCLT/NCLAT. Section 238A of the Code make provisions of Limitation Act would apply to proceedings under the Code. As stated supra, debt in question fell on various dates on and after October, 2011 and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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