TaxTMI 
TaxTMI 
2017 (10) TMI 981
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....ion 9 of Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "I & B Code") for initiation of Corporate Insolvency Resolution Process against Appellant- M/s. Bhash Software Labs Pvt. Ltd.-"Corporate Debtor". The Adjudicating Authority, (National Company Law Tribunal), Chennai Bench, Chennai, by impugned order dated 1st June, 2017 admitted the application, initiated Insolvency Resolution Process and passed, prohibitory orders in terms of I&B Code. 2. The Appellant has challenged the impugned order mainly on following grounds: - (i) The impugned order has been passed in violation of Rules of natural justice without notice to the appellant. (ii) No notice under section 8 of I & B Code or under Rule 5(3) of the ....
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....is not in dispute that the address of the appellant was changed and recorded in the register with the Registrar of Companies. It was not the duty of the appellant to inform the "Operational Creditor" the change of the address for the purpose of filing a case/application under section 9 of the I & B Code. If the notice under section 8 issued by respondent- "Operational Creditor" was returned due to incorrect address, it was the duty of the "Operational Creditor" to provide the correct and present address of the 'Corporate Debtor" before preferring any application under section 9 of the I & B Code. 7. In any case, it is accepted that no notice was issued by the Adjudicating Authority before admission of the application. 8. In "MIs. ....
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....ted out the poor quality of the service. The relevant portion of the reply dated 23rd September,20 16 on behalf of the appellant reads as follows: "2. In pursuance of the Service, Our Client was in need of persons with the infrastructure and technical proficiency to send such bulk SMSes to the public ("Service"). Your Client is one such entity that does so as its primary occupation and approached Our Client with an offer its expertise to Our Client. Thereafter, Our Client entered into a Service Level Agreed dated 3 January 2015 ("Agreement") to engage Your Client for the above. Asper the Agreement, Our Client would provide the content of the SMSes and the phone numbers to which such SMS would be sent and response to any subsequent ....
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....ailure to live up to Your Client's promises are "Priority Level Problems" as provided for in Annexure lV of the Agreement. 5. The above situation persisted for a few months upon availing the New Service. Thereafter, in February 2016, rather than address the problems highlighted above, Your Client abruptly terminated the Agreement, leaving Our Client in the lurch and scrambling for alternatives to continue the Service. Your Client made a demand for payment of the outstanding invoices for the period commencing November 2015 and ending February 2016 for a total amount of INR. 75,76,380/- ("Invoice Amount"). Our Client once again brought to Your Client's attention the poor quality of the New Service was a breach of the terms of....
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....terpreting the meaning of "dispute" and "existence of dispute, if any", observed: "31. The dispute under I&B Code, 2016 must relate to specified nature in clause (a), (b) or (c) i.e. existence of amount of debt or quality of goods or service or breach of representation or warranty. However, it is capable of being discerned not only from in a suit or arbitration from any document related to it. For example, the 'operational creditor' has issued notice under Code of Civil Procedure Code, 1908 prior to initiation of the suit against the operational creditor which is disputed by 'corporate debtor. Similarly notice under Section 59 of the Sales and Goods Act if issued by one of the party, a labourer/employee who may claim to....
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....proceedings only. It includes any other dispute raised prior to Section 8 in this in relation to clause (a) or (b) or (c) of sub-section (6) of Section 5. It must be raised in a court of law or authority and proposed to be moved before the court of law or authority and not any got up or malafide dispute just to stall the insolvency resolution process." 13. The case of appellant is covered by decision in "Kirusa Software Private Ltd. v. Mobilox Innovations Private Ltd." There being "existence of dispute", we hold that the petition under section 9 preferred by respondent- "Operational Creditor" was not maintainable. 14. For the reasons aforesaid, we set aside the impugned order dated 1st June, 2017 passed by the Ld. Adjudicating Authori....