TMI Blog2021 (8) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... . Kirusa Software (P) Limited [ 2017 (9) TMI 1270 - SUPREME COURT ] , the contents of the email dated 04.02.2016 amounts to be plausible dispute between the parties. Time Limitation - HELD THAT:- The said claim is also time barred in view of the fact that the invoices pertaining to the year 2015-2016 and the petition was filed on 07.05.2019, the last payment made by the Corporate Debtor was on 01.12.2015. The email of the Corporate Debtor raising a dispute dated 04.02.2016 which may have extended the limitation also ends by February, 2019 and in view of the fact that the petition was filed on 07.02.2019, this Petition is barred by limitation. Petition dismissed. - CP (IB) 1849/MB/C-IV/2019 - - - Dated:- 26-7-2021 - Shri Rajesh Sharma Hon ble Member (Technical) And Smt. Suchitra Kanuparthi Hon ble Member (Judicial) For the Petitioner: Mr. Nihall Shaikh a/w Mr. Shrikant Pillai, Advocates For the Respondent: Mr. Nirman Sharma a/w Mr. Vishal Jathari, i/b MDP Partners ORDER Per: Suchitra Kanuparthi, Member (Judicial) 1. This is a Company Petition filed under section 9 of the Insolvency Bankruptcy Code, 2016 (IBC) by Bsmart Tech Private Limited ( th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sr. No. Invoice No. Invoice Date Invoice Due Date Invoice Amount (INR) Interest @12% p.a. from the due date of invoice till 03.05.2019 1. BTPLBLK0615- 177 07.23.2015 08.02.2015 84,293.41 38,077.53 2. BTPLIUC0615- 178 07.23.2015 08.02.2015 273,253.95 123,435.92 3. BTPLBLK1015- 217 11.12.2015 11.22.2015 327,291.38 135,794.54 4. BTPLIUC1015- 65 11.12.2015 11.22.2015 86,430.58 35,860.40 5. BTPLBLK1115- 206 12.14.2015 12.24.2015 80,141.30 32,407.82 6. BTPLIUC1115- 168 12.14.2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor failed to repay the outstanding dues, the Petitioner sent repeated reminders to the Corporate Debtor requesting for clearing of outstanding amount. The corporate Debtor vide its email 04.02.2016 informed and admitted to the Petitioner that they are in receipt of invoices for the month of Oct-Nov, 2015, however, there has been some differences in SMS gap, as the invoices reflect the total SMS count to be 25,32,815 as against 17,15,018 as per Corporate Debtor record. The Petitioner pointed out that the Corporate Debtor did not raised any issue or refused to pay invoice amount, but only raised a query on the alleged differences in SMS count. 7. The Petitioner also submits that vide its email on 12.02.2016 and 21.03.2016 informed the Corporate Debtor that the alleged invoices that 02.02.2016 and 01.03.2016 have been dispatched to the Corporate Debtor and requested to make payment as per defined payment terms. However, despite of aforesaid invoices and emails, the Corporate Debtor neither responded to said emails nor repay the outstanding dues. 8. Since, the Petitioner failed to repay the outstanding dues, the Petitioner vide email dated 22.03.2016 forwarded the details of all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the email dated 04.02.2016 shows that the Corporate Debtor requested the Petitioner to provide clarity on supporting documents in relation to the invoices raised by it for the Month of March, April and May, 2015, which was never provided by the Petitioner. 13. The email exchanged between the parties clearly shows that the Corporate Debtor continuously request the Petitioner to assist in opening of link/documents which was sent by the Petitioner as the petitioner was unable to open the same and send the logs. The Corporate Debtor also submits that the Petitioner has stopped rendering its services from 16.05.2016. Thereafter, the Corporate Debtor replied to the Demand Notice on 08.01.2019 denying all the allegations/contention made therein. 14. The Corporate Debtor submitted there were pre-existing dispute between the parties which is evident from the email dated 04.02.2016 and the material available on record and hence the petition is not maintainable and liable to be dismissed in limine with costs. The Corporate Debtor also submitted that the Operational Debt of the Petitioner arises out of the invoices for the Month of Oct-Nov 2015 and Jan 2016. The Corporate Debtor fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corporate Debtor, the Petitioner had sent a revised proposal indicating the SMS rate for the year 2015-16. The revised proposal therefore provides that the SMS charge would be at 0.07 instead of 0.05. The Corporate Debtor has not disputed the applicable rate as per the revised proposal. Further, the Petitioner has provided logs to the Corporate Debtor as the clarification on the SMS unit mention on the outstanding invoices. ADDITIONAL REPLY FILED BY THE CORPORATE DEBTOR 18. In addition to the reply filed by the Corporate Debtor, the Corproate Debtor filed additional reply, thereby submits that the claim is entirely barred by limitation as the invoices pertains to the year 2015-2016 and the present petition belatedly on 07.05.2019. Therefore, the Corporate sought to dismiss the Petition. WRITTEN SUBMISSION FILED BY THE PETITIONER 19. The Petitioner claim that the Corporate Debtor is liable to pay to pay ₹ 17,54,240.10 alongwith interest @12% p.a. in respect of outstanding operational debt for providing Bulk SMS services. The Corporate Debtor unilaterally stop paying services from July 2015. The Corporate Debtor vide email on 04.02.2016 acknowledged the Peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as raised by the Corporate Debtor but evidently there has been dispute with regard to the SMS count as claimed by the Petitioner in the said invoice and SMS count as recorded by the Corporate Debtor, this amounts to be a pre-existing dispute between the parties and in view of judgment of Mobilox Innovations Private Limited vs. Kirusa Software (P) Limited 2017 1 SCC Online SC353, the contents of the email dated 04.02.2016 amounts to be plausible dispute between the parties. 24. Further, the said claim is also time barred in view of the fact that the invoices pertaining to the year 2015-2016 and the petition was filed on 07.05.2019, the last payment made by the Corporate Debtor was on 01.12.2015. The email of the Corporate Debtor raising a dispute dated 04.02.2016 which may have extended the limitation also ends by February, 2019 and in view of the fact that the petition was filed on 07.02.2019, this Petition is barred by limitation. 25. This Court doth order as follows; i. The Petition is barred by limitation and is filed beyond the period of limitation. ii. The email dated 04.02.2016 raising a pre-existing dispute between the parties. 26. Accordingly, in view o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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