TaxTMI 
TaxTMI 
2017 (10) TMI 1502
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....pplicant operational creditor is Brad Roy Infotech Pvt. Ltd. whose identification No. is U72200WB1995PPC075654 and having its registered office at 10/4B, Elgin Road, 1st Floor, Kolkata - 700 020. The Corporate debtor is Heritage Health Insurance TPA Pvt. Ltd. whose identification No. is IJ85195WB1998FTC088562 having its registered office at 3, Netaji Subhas Road, Kolkata - 700 001. 3. The petitioner has stated that the respondent/ corporate debtor had appointed the petitioner/ operational creditor to act as a smartcard service provider for their project located at Bargarh, Orissa. The petitioner/ operational creditor was required to provide its service about the enrollment of beneficiaries covered under the Rashtriya Swasthya Bima YOjna (in short, RSBY) and the operational creditor provided the services of issuing various types of the smart card to the beneficiaries under the RSBY scheme for the district of Bargarh, Orissa. 4. The operational creditor has stated that after providing the requisite services as required by the corporate debtor, the applicant/ operational creditor used to raise their invoices against services. Copies of the invoices raised by the operational cred....
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....te debtor. The operational creditor submits that it is due of which is payable to the operational creditor along with interest on the outstanding principal amount @ 24% per annum from 31/5/2017 till the amount is paid and liquidated in full. A copy of the statement of account showing the due in tabular form is annexed with the application and marked as Annexure Il-B. 10. In reply to the demand notice issued under I & B Code, 2016, the corporate debtor made a reply wherein it has been stated that the applicant/operational creditor has suppressed the agreements dated 16/9/2013 and 1/ 10/2013 between the parties. It has been further stated that as per para 2.6 of Part IV of the application, the applicant attempted to allege as if the agreement between the parties was entered into by exchange of emails and correspondences. Copies of the agreement dated 16/9/2013 and I/ 10/2013 are annexed with the reply and collectively marked as Annexure R-3. 11. It has been further stated in the reply that the applicant has suppressed the fact that agreements dated 16/9/2013 and 1/ 10/2013 were entered into between the parties for issuance of Smartcards in 17 Districts of Uttar Pradesh and Barg....
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.... operational creditor. 16. Heard arguments of Ld. Counsel for the petitioner/operational creditor and Ld. Counsel for the respondent/corporate debtor and perused the record. Petitioner/operational creditor has filed this application under Sec.9 of the I & B Code, 2016 with the allegation that the corporate debtor has failed to make payment of the invoices raised by services rendered by the operational creditor as per order placed by the corporate debtor and all such invoices were received by the corporate debtor. The operational creditor has stated that it had raised invoices aggregating to Rs. 1, out of which corporate debtor has paid only Rs. 63,95,064/-, and a sum of Rs. 49,02,344/- is due and payable by the corporate debtor. 17. Petitioner has further stated that despite repeated demand for clearing the outstanding dues, the corporate debtor did not make payment. Therefore, applicant issued demand notice dated 15/6/2017 prescribed under Adjudicating Authority Rules, 2016 which was received by the respondent on 17/6/2017 but corporate debtor failed to make payment. Therefore, the operational creditor has filed this application under Sec.9 of the I & B Code, 2016. 18. Be....
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.... field supplementary affidavit wherein it is stated that he has compiled as per Sec.9(3)(c) of the I & B Code for the issuance of a certificate to the respective banks and financial institutions. The bank has expressed their inability to issue such certificate. Petitioner has attached a copy of the bank statement which bears the stamp of the bank along with the affidavit, and all the certificates have also been verified by Ld. Advocate of the operational creditor certified as a true copy. Petitioner has also signed on every paid of the bank statement in the capacity of the director of the company. In compliance with provision of Sec.9(3)(c) of the I & B Code, petitioner has filed an affidavit wherein it is stated that they have approached the banker for issuance of certificate for filing in court in compliance with Sec.9(3)(c) of the I & B Code but the bank refused to issue certificate. Petitioner has also filed a copy of bank statement which also contains the stamp of the bank along with the signature of bank officials. It is true that the petitioner has not filed any certificate of the bank to show that no payment of the unpaid operational debt has been made by the corporate debt....
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....ail dated 6/5/2017. It is further stated that corporate debtor has never admitted the dues of the applicant. 26. On perusal of the record it appears that demand notice under Form No.3 was served on the corporate debtor on 17/6/2017 and it is also clear that after receiving the demand notice within 10 days corporate debtor has not filed any reply nor raised any dispute to bring to the notice of the operational creditor regarding the existence of dispute or record of pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoices in relation to such dispute. 27. Corporate Debtor has emphasized the email dated 7 /4/2017 which is about two months before the receipt Of demand notice. The said email is on page 126 of the petition itself. On perusal of the email dated 7 /4/2017 it appears that an email was sent by A. Alam on 7 /4/2017 to the petitioner wherein, it is stated that "Dear Ms Aditi Please see the trail mail which is of serious nature. Data, as submitted by M/S Bradroy, are partially accepted by Insurance co. as well as SNA UP, and as a result, we have to face huge losses. We have severally taken up the issues with you....
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....ner has stated that e-mail dated 4/4/2017 was relating to the different project and has no bearing and linkage to the Bargarh, Orissa project for which dues have been pending for a long time. Therefore, by e-mail between the parties dated 7/4/2017 and the further reply was given by the petitioner through e-mail dated 6/5/2017, it is clear that the email correspondence through was relating to the different project. 31. The corporate debtor has further stated in the reply that applicant has suppressed the agreement dated 16/9/2013 and agreement dated 1/ 10/2013 between the parties. Corporate debtor filed copy of the said two accord which clearly shows that accord dated 16/9/2013 was between the same parties but it was relating to the Smart Card Service Provider relating to the services in 17 districts of UP on the terms and conditions set forth in the said agreement whereas the agreement dated 1/ 10/2013 shows that this deal was between the same parties and it relates to the Smart Card Service Provider for providing services in one district of Orissa on the terms and conditions set forth in the agreement. It is also clear from the deal that these two contracts executed at differen....
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.... determine the existence of dispute as provided in of the I & B Code in the case of 2017 SCC SC 1154 Mobilox Innovations Private Limited vs Kirusa Software Private Limited. In this case Hon'ble Supreme Court has held that: "It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the "existence" of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. 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 patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defense which is mere bluster. However, in doing so, the Court does not need to be sat....
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....ng to the service rendered in UP. 38. On perusal of the record, it also appears that there was a dispute relating to the service rendered in UP but for that the contract was separate, and there was no interconnection between the contract of service relating to Orissa and UP. As such, by an existing dispute of UP, it cannot be inferred that dispute was relating to service rendered in Orissa. 39. The present application has been filed relating to invoices which have been raised regarding the service rendered at Orissa for which contract was separate. The corporate debtor has not filed any document to show that there was any pre -existing dispute regarding service rendered in Orissa. The corporate debtor has not filed a reply to the demand notice under the statutory period prescribed under Sec.8(2) of the I & B Code. Therefore, on the basis of law laid down by Hon'ble Supreme Court in the case of Mobilex Innovations Private Limited (supra) it is clear that corporate debtor has taken the defence of existence of dispute as a frivolous ground and in fact no dispute truly exists in between the parties relating to the service rendered by the operational creditor in Orissa for which c....
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....e corporate debtor failed to issue any notice regarding existence of dispute or to record the pendency of the suit or arbitration proceedings relating to such dispute. The operational creditor has filed an affidavit in compliance with the provision of Sec.9(3)(b). The operational creditor has also filed a certified copy Of bank statement in compliance with the provision of Sec.9(3)(c). From the documents filed by the petitioner, it is clear that no dispute was existing regarding the outstanding dues of the invoices raised for the service rendered by the operational creditor in the state of Orissa. It is also evident that the defence taken by the corporate debtor regarding the existence of a dispute is spurious and without any basis. In fact, the said dispute was existing relating to the service rendered by the operational creditor in UP for which there was separate agreement executed on different dates, and there was no interconnection between the contract made for Orissa and the contract awarded regarding the same service of UP. 43. The operational creditor has also proposed the name of Interim Resolution Professional, Shri Chhedi Rajbhar, who is competent to work as IRP. No di....