TaxTMI 
TaxTMI 
2020 (5) TMI 195
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....t giving stipulated notice period as per agreement 55,08,313 4. Mental agony caused to company 10,00,000 Total 1,83,87,559 Hence this petition is filed under section 9 of the Insolvency and Bankruptcy Code, 2016, read with rule 6 of the Insolvency and Bankruptcy (Application to the Adjudicating Authority) Rules, 2016, seeking admission of the petition, initiation of the corporate insolvency resolution process, granting moratorium and appointment of interim resolution professional as prescribed under the Code and Rules thereon. 2. The averments of the petition filed by the petitioner/operational creditor in brief are : (i) M/s. Vertex Customer Management India P. Ltd./operational creditor is a company registered under the Companies Act, 1956 and is engaged, inter alia, in the business of providing customer services to its clients. Abhibus entered into an agreement on October 30, 2015 with Vertex for availing the services across India. A debt amount of Rs. 1,13,71,917 is due from the corporate debtor towards services rendered by the operational creditor against the following invoices : Sl. No. Invoice No. Date Amount (Rs.) 1. VCM-UP/24547 23-12-2017 26,14,47....
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....section 8, if the operational creditor does not receive payment from the corporate debtor or notice of dispute under sub-section (2) of section 8". Since application fails to specify the date of delivery and fails to evidence such delivery through any postal documents, calculation of 10 days time period is not possible. So, the application ought to be rejected for non-compliance with the stipulations under section 9 of the I and B Code, 2016. (iii) It is averred that after receiving the alleged demand notice by one of the directors of the respondent-company, the respondent sent a detailed reply notice dated July 27, 2018 under section 8(2) of the I and B Code. The notice contains that the applicant had caused multiple instances of breach under the service agreement dated October 30, 2015 and communicated to the applicant from time to time. The debt dispute notice contains seven annexures, containing e-mail correspondence and various other documents, which are voluminous in size. (iv) It is averred that on July 28, 2018 the respondent sent the debt dispute notice by way of speed post to the applicant to the address specified in the demand notice, but the same was returned as inc....
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....ide services catering to the customers of the respondent, containing three annexures, i. e., scope of ser vices, service level agreement (SLA) and charges and payment mechanism (CPM). (viii) It is averred that some of the key clauses are incorporated in the service agreement and mentioned at paragraph 9 of the counter. (ix) Further, it is averred that the service agreement stresses on the need for the applicant to have adequate trained manpower, functional tele phone lines, contact services, IT infrastructure among others. (x) It is averred that under clauses 11 to 15 of the SLA, the parties have specifically agreed on the applicant's liability to be levied with penalties and the penalties range up to Rs. 3,50,000 based on each such violation and the penalties are fixed separately for private buses and APSRTC buses. (xi) It is averred that the service agreement dated December 17, 2015 was amended four times till September 16, 2017 upon the mutual consent of the applicant and respondent and mutually agreed that the agreement will stand renewed for one year commencing on September 17, 2017 on the same terms and conditions. (xii) It is further averred that the applicant ....
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....ntity by the customers at large. (xvii) It is averred that the applicant closed down its Bengaluru operations. As a result, the respondent lost a substantial number of customers and operators, which resulted loss of substantial monies for the respondent. (xviii) It is averred that the applicant's multiple instances of breach of the SLA, the respondent was levied with penalties by the Telangana State Road Transport Corporation. Thus, the instances of breach of the SLA caused for the respondent to be penalized for no default. (xix) It is averred that due to multiple instances of breach of the ser vice agreement, the respondent constrained to terminate the service agreement with effect from May 19, 2018 vide termination letter dated April 19, 2018. (xx) It is averred that the alleged operation debt claimed by the applicant of Rs. 1,83,87,559 stands disputed. (xxi) It is averred that the principal amount in the operational debt has been alleged as Rs. 1,13,71,917 having been raised vide seven purported invoices from December, 2017 to June, 2018. While raising and clearing invoices, the respondent levies the applicable penalties under annexure 1A of the agreement and appro....
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....epting the PDCs, depo siting them and issuing dishonour notice clearly evidences that the applicant had expressly accepted the amount due under invoice dated December 23, 2017 is not Rs. 26,14,472 as claimed in the demand notice and the CP applicant but is Rs. 23,54,058 and that the amount "due" under the invoice dated January 18, 2018 is not Rs. 22,88,878 as claimed in the demand notice and the CP application but is Rs. 20,10,649. The applicant is only entitled to claim the invoice after penalty deduction, the applicant has made a wrong claim of the principal amount showing it as due debt. As regards the remaining four invoices dated February 15, 2018, March 21, 2018, March 31, 2018 and May 17, 2018 the applicant deliberately made wrong claims of preliminary invoice amounts. As regards the Seventh invoice dated June 13, 2018 it was rejected as it was not accompanying with the supporting invoice documents. The above wrong claims under 7 invoices substantially alters the principal amount, which in turn alters interest, penalty, etc. (xxvii) It is also averred that neither of the parties agreed to any charging of interest and the applicant has made a wrong claim of Rs. 5,07,330 as ....
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....nt CP to harass the respondent and to unjustly enrich itself by causing wrongful gains for itself and wrongful losses to the respondent and the applicant has circumvented the arbitration dispute resolution mechanism under the service agreement and is liable for abuse of process of law and of process of this Tribunal. The operational debt is denied as outstanding or payable as it is disputed, unascertainable, illegal, irrational, unlawful and not due. 4. Rejoinder filed by the petitioner/operational creditor, in brief are as follows : (i) It is averred that the corporate debtor is fully conversant with the contents of demand notice as it gave a reply dated July 27, 2018 which is evident that the respondent has received the demand notice and the respondent with a mala fide intention is trying to portray before this Tribunal that there are some technical errors on the part of the operational creditor. The respondent is very well aware of the fact that it does not have any proper reason for not paying the claim amount mentioned in the petition and is trying to create technical issues to overcome the liability. (ii) It is averred that clauses 11 to 15 of SLA, the parties have speci....
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....s. The respondent agrees that the petitioner is entitled to the undisputed amounts, the respondent has not released the amounts which lawfully belong to the petitioner, the said inaction of the respondent in releasing the payments due to it and hence the demand notice issued is wholly justifiable. As regards computation, the petitioner sent the final calculation for the invoice dated June 17, 2018 to the corporate debtor but the same evoked no response from the corporate debtor. (x) It is averred that as per the service agreement, clause 6.4 reads that the penalties shall be deducted from the payments being made to the petitioner/operational creditor. It is averred that when penalties are being levied for the alleged non-performance of the petitioner's employees, the question of debit note is of little relevance as the same is relevant in the exchange of goods and not services. (xi) It is averred that the allegations of there being multiple number of breaches is absolutely false and incorrect as the petitioner was at all time diligent in performing its duties in accordance with the service agreement and the issue of penalties are raised only with an intention of absolving i....
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.... 1,83,87,559 which includes interest which is due towards the customer care services which operational creditor rendered for the corporate debtor in pursuance of service level agreement dated October 30, 2015 and amendments thereon. 7. Learned counsel contended the corporate debtor approached the operational creditor for extending services owing to the goodwill and reputation of the operational creditor. Counsel contended corporate debtor utilized the services of operational creditor which were rendered to the utmost satisfaction of corporate debtor. Counsel contended the corporate debtor however committed default in respect of the invoices raised for the services rendered. Counsel contended the service agreement is shown as annexure-I. Counsel contended there was no dispute raised at any time prior to issuing demand notice in respect of services rendered by the operational creditor. Counsel contended operational creditor rendered services from 2015 to 2017 and raised invoices for an amount of Rs. 1,13,71,917 which is payable within 30 days. The cheques issued by corporate debtor were not honoured and returned with endorsement "payment stopped by drawer". 8. Counsel contended the....
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.... (a) Vertex failed to employ its own personnel to provide customer care services, and had required the vice president of Abhibus to step in and recruit personnel for Vertex ; (b) Vertex failed to deliver even basic customer care services, resulting in bad reviews from customers on various online platforms resulting in loss of reputation, customer and goodwill to Abhibus ; (c) Vertex failed to employ supervisory or managerial employees ; (d) Vertex failed to provide qualitative and proper IT infrastructure to handle the customers' concerns, calls and queries ; (e) Vertex abruptly closed its Benguluru (Karnataka) operations centre ; (f) Due to Vertex's deficient services, the TSRTC and APSRTC levied hefty penalties on Abhibus, resulting in direct business and reputation loss. Counsel has relied on the opinion given by the customers about the services rendered. They are shown at page Nos. 75 to 82 of the counter booklet. 10. Thus, learned counsel contended the customers expressed total dissatisfaction with regard to the customer services of the operational creditor. Even though service agreement was amended several times yet there was no improvement in the custome....
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..... It is true operational creditor entered into service agreement with the corporate debtor. The operational creditor to render customer care services to the customers of corporate debtor. The main contention of corporate debtor that the services rendered by the operational creditor are not satisfactory and there are several deficiencies in the services of operational creditor. The contention of the corporate debtor that customers expressed total dissatisfaction of the services rendered by the operational creditor. 12. The corporate debtor has relied on the reviews of the customers which are shown at page Nos. 75 to 82 of the counter. It is true, information from the customers found in these mails shows that they are totally dissatisfied with the services of the operational creditor. It is undisputed fact that service agreement dated October 30, 2015 was cancelled and termination notice was issued on April 19, 2018 and termination would come into effect from May 19, 2018. Thus, one months' notice was issued prior to termination. The termination of service agreement was prior to demand notice dated June 17, 2018. In the termination notice, the corporate debtor specifically state....