TMI Blog2024 (1) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... India and Jet Airways. The e-mail dated 10.05.2021 sent by the Respondent to the Appellant under title of Intimation of breach of contract much prior to issue of demand notice under Section 8 of the Code, is nothing but pre-existing disputes and thus the dispute is squarely covered by the judgement of the Apex Court in Mobilox Innovations [ 2017 (9) TMI 1270 - SUPREME COURT ]. The Adjudicating Authority after considering all documents and facts correctly held that there was a pre-existing dispute and the appeal raises no valid grounds to controvert the said finding - there are no error in the Impugned Order under challenge - appeal dismissed. - [ Justice Rakesh Kumar Jain ] Member ( Judicial ) And [ Mr. Naresh Salecha ] Member ( Technical ) For the Appellant : Mr. Pranav Goyal Mr. Virender Mehta, Advocates For the Respondents : Mr. Mansumyer Singh, Ms. Manisha Chaudhary, Ms. Manisha Sharma Mr. Shravan Chandrashekhar, Advocates ORDER Per : [ NARESH SALECHA , MEMBER ( TECHNICAL ) ] : The present Appeal i.e., Company Appeal (AT) (Insolvency) No. 1400 of 2022 has been filed under Section 61 of the Insolvency and Bankruptcy Code, 2016 (in short ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r various airlines . Lastly, Segments have been defined under Clause 6.8 of the GDS Agreement. 7. The Appellant brought out that he gave advance of Rs.75 Lakh to the Respondent to buy air tickets and also deduct the incentives dues, however despite complete failure on part of the respondent, the Respondent did not return advance given by the Appellant to the Respondent. 8. The Appellant alleged that the Adjudicating Authority erroneously arrived at the conclusion that the Respondent being engaged in the business of travel must have suffered losses due to the termination of use of the GDS system of the Appellant by Air India, whereas GDS agreement entered between the parties does not contain even the name of 'Air India' specifically or otherwise, which could have justified the Adjudicating Authority to pass the said Impugned Order against the Appellant. 9. The Appellant called upon Respondents to return the amount of Rs. 75 Lakh by way of various discussion and meeting in his office and then by way of various discussion and meeting in his office and then by way of notices such as 04.06.2019, 06.08.2019 and finally the demand notice under Section 8 dated 20.11.2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Per contra, the Respondent denied all the averments of the Appellant as baseless and misleading. 15. The Respondent alleged that the Appellant violated the agreement and cheated him leading to closure of his business and the present appeal has been filed only to harass him and with fraudulent intentions of illegal gratification from the Respondent. 16. The Respondent stated that there were clear pre-existing disputes with the Appellant and he sent e-mail dated 10.05.2021 much prior to demand notice sent by the Appellant under section 8 of the Code. The Respondent further alleged that as per agreement, the Appellant was duty bound to provide platform of all domestic airlines but Air India and Jet Airways did not allow platform, resulting in breach of agreement. 17. The Respondent submitted that as per Para 40 of the judgment of the Hon'ble Supreme Court in Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software Private Limited[(2018) 1 Supreme Court Cases 353] it was held as follows: 40... Therefore, all that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... breach of a representation or warranty. 23. We will also like to look into relevant para of the Impugned Order which read as under :- 5. The Corporate Debtor, in reply to demand notice dated 27.11.2019 issued by the Operational Creditor on 20.11.2019 in compliance of section 8 of IBC, 2016 read with clause (a) of sub-rule (1) of Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, had disputed the alleged Claims of the Operational Creditor and contended that there is (a pre-existing dispute between the parties. The Respondent had pointed out the email dated 10.05.2019 which was sent to the Applicant by the Respondent, wherein the subject was Intimation of Breach of Contract in the said email it was mentioned that Air India and Jet Airways have suspendedthe Global Distribution Services (in short GDS Services ) of the Applicant. As per the terms of GDS Subscriber Agreement entered between Applicant and Respondent, the Respondent's Company is bound to use the GDS Services of the Applicant exclusively. Further, in para 5 of the aforesaid email the Respondent had also mentioned that about 9 months have passed and in spite of seve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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