TaxTMI 
TaxTMI 
2020 (4) TMI 350
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Kumar, Mr. Dhruv Gupta, Mr. Arnav Behari and Mr. Mahesh Agarwal, Advocates JUDGMENT A.I.S. CHEEMA, J: The Appellant - 'Operational Creditor' has filed this Appeal against impugned order dated 14th October, 2019 in C.P. (IB) No.1775/NCLT/MB/ 2019 passed by the Adjudicating Authority (National Company Law Tribunal), Mumbai Bench, whereby the application under Section 9 of the Insolvency and Bankruptcy Code, 2016 ('IBC' in short) filed against Respondent, Play Games 24x7 Private Limited - 'Corporate Debtor', came to be rejected on the ground of pre-existing dispute. 2. The Appellant claims that it has supplied digital marketing and advertising services to the 'Corporate Debtor' as per contract dated 09.07.2018 (Annexure 2 - Page 7....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Appellant had made unauthorised use of brand name of the 'Corporate Debtor' and had over-charged. Allegations were made regarding the Appellant bribing and colluding with employees of the 'Corporate Debtor'. There was overcharging of fees because of fraudulent passing of users from one State (for which area charges were less) as being users from another State (for which charges were higher). The 'Corporate Debtor' also relied on Investigation Report from Deloitte Touche of March 2019 in support of the defense. 4. The Adjudicating Authority after hearing the parties and considering the records, referred to judgment in the matter of "Mobilox Innovations Private Limited vs. Kirusa Software Private limited (AIR 2017 SC 4532)" with regard t....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... It is claimed that there had been no misuse of the brand keywords of the Respondent by the Appellant. According to the Appellant, brand keywords was part of job assignment and was always required to be changed, which the Respondent was communicating contemporaneously and Appellant was duly changing within the course of 24 hours. According to the Appellant, this could not be claimed to be pre-existing dispute. Reference is made by the learned Counsel for the Appellant to e-mail (Annexure 6 - Page 139) dated 13th December, 2018 sent by the 'Corporate Debtor' to the 'Operational Creditor' asking the Appellant to slowly start scaling up the campaigns. According to the learned Counsel this suggested that there was satisfaction with the service....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ant had sufficiently explained the allegations made by the Respondent and, thus, the grievance made by the Respondent should not be treated as pre-existing dispute. 8. Against this, the Counsel for the Respondent is relying on the Investigation got done and Report of Deloittee as well as Notice dated 23rd March, 2019 (Annexure 10 - Page 187), which admittedly was sent by the Respondent on 5th April, 2019. 9. Having heard learned Counsel for both sides and having gone through the correspondence between the parties, it would be appropriate to reproduce portion of relevant para of Notice, Annexure-10 dated 23rd March, 2019 sent by the 'Corporate Debtor' to the Appellant - 'Operational Creditor'. The Notice was sent in the context of the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the relationship between Sachin Uppal, Amit Vora and LCPPL and the Services provided to Play Games, including regarding any improper business practices, misrepresentations, misreporting and overstatement of fees that may have taken place on the part of LCPPL and Sachin. 4. We direct your attention to Clause 4(a) of the Agreement, under which LCPPL has represented and warranted that it will work diligently to protect and promote Play Games' interests at all times. Given this, we hereby request LCPPL's cooperation with Play Games in understanding the circumstances in relation to these transactions and providing information regarding any other commercial transaction between LCPPL and Sachin Uppal, including the purpose and intent behi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Mumbai Maharashtra - 400067." 10. The learned Counsel for the Appellant claims that such Notice was sent so as to avoid proceedings like the present one and the Appellant has sufficiently explained and thus the Notice should have been ignored. Having gone through the Notice as mentioned above and considering the fact that the 'Corporate Debtor' had not rushed into issuing such Notice and had obtained Report from Deloittee in March 2019 (Page 33 of Diary No.17291), we find that the Notice does disclose pre-existing dispute between the parties with regard to the services rendered by the Appellant. Notice shows loss of confidence & thus holding on to outstanding payments. It is not possible in a summary proceeding like the present ....