TaxTMI 
TaxTMI 
TaxTMI 
2020 (4) TMI 350
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....hari 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 72) and that there were operational dues which....
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....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 to definition of "dispute" and found: - "Rs. 12.....
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....eywords 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 services. Against this, the learned Counsel for the Respondent has....
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....ndent 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 same contract dated 9th July, 2018 (Annexure 2). The Notice states: ....
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....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 behind such transactions. Please note that Sachin Uppal's relationship with LCPPL and Amit Vora is also being looked into as part of the internal review and investigation mentioned abo....