TaxTMI 
TaxTMI 
2020 (10) TMI 389
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....nal Creditor operates as an online marketplace on the website located at the URL www.netmeds.com and on the Netmeds app mobile application (collectively referred to as the "Marketplace"). The Marketplace acts as an online platform facilitating different sellers the opportunity to sell their products and/or services and enabling interested buyers to purchase the products and/or services offered by the sellers on the Marketplace. ii. The Operational Creditor is a Company incorporated under the Companies Act, 1956. Thiyagarajan son of Mallikeswaran Vice President (Finance) of the Applicant Company and is duly authorized by virtue of Board of Directors resolution dated 26.03.2019 in his favour of institute, file, verify and present this petition before the Tribunal on behalf of the operational creditor. True copy of the Board Resolution dated 26.03.2019 in favour of Shri. Thiyaarajan and certificate of incorporation is annexed herewith as Annexure-P/ 1 & P/2 respectively. iii. Respondent/Corporate Debtor M/s. Madhatters Voyage Private Limited registered under the Indian Companies Act, 2013. The copy of the Company incorporation certificate is annexed hereto and marked....
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....dealing with the Shipments. ix) If Netmeds's customer is not available to receive the Shipment then the Service Provider shall return the shipments back to the hub. x) Servicer Provider shall update the final status of each shipment to Netmeds at the end. of the day which is showing under Service Provider account. xi) The Service Provider shall conduct a background verification of personnel deployed to perform services for Netmeds hereunder at its sole cost and shall ensure that such personnel have cleared such background verification checks before deploying them for performance of Services hereunder. Further, such information should be available on demand to Netmeds." The copy of the Agreement dated 06.03.2018 between the parties is being filed as Annexure-P4. vi. Even after making many demands the Respondent/Corporate Debtor has not paid the amount as demanded through telephone and e-mail communications on 23.10.2018, 13.11.2018, 14.11.2018, 19.11.2018, 20.11.2018, 26.11.2018, 07.12.2018, 31.01.2019, 04.02.2019, 09.02.2019, 11.02.2019, 12.02.2019, 18.02.2019, and 20.02.2019 by the Applicant/Operational Creditor nor have they disput....
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....Section 9 can be made only with respect to an 'operational debt' and not any 'debt' in general. Thus the Petitioner cannot take recourse to IBC for recovery of the said amount and the proper remedy for the Petitioner would be to institute a civil suit before the court of competent jurisdiction. iii. In view of the aforesaid, Petitioner being the recipient of services therefore, does not qualify as an 'Operational Creditor' and consequently no recourse can be taken under IBC. iv. It is a matter of record that the parties were under communication on the issue of reconciliation of any pending COD payments that forms the subject matter of present proceedings. Though the same is evident from the documents placed on record by the petitioner itself, however, the communication issued by the Corporate Debtor in this context has been conveniently ignored by the Operational Creditor. v. Furthermore, having failed to disclose such material information by itself, the Petitioner has also malafidely filed incomplete copy of the Corporate Debtor's Reply dated 16.03.2019 to the Demand Notice dated 06.03.2019. The Petitioner has deliberately and....
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....e court of competent jurisdiction. The Petitioner is therefore clearly abusing the process of law by taking recourse to IBC for arm twisting our Client to succumb to its otherwise unreasonable demand. x. In this regard he placed reliance upon Hon'ble Supreme Court judgement in the case of Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited, and NCLT Mumbai Bench's decision in Vijay Rochlani v. Shantai Exim Limited. 4. The petitioner also filed the rejoinder to the reply and raised the following averments: i. the Applicant/Operational Creditor entered into an agreement dated 06.03.2018 with M/s. Madhatters Voyage Private Limited, Respondent/Corporate Debtor herein for the courier services. Clause 3 of the said Agreement enumerates the Obligations of M/s. Madhatters Voyage Private Limited, the service provider herein. In the said clause, the 3(iii) and 3 (iv) reads as follows; "iii. Service Provider shall provide services for all the Shipments in the following types for Netmeds like Shipment Delivery, Prepaid, Cash on Delivery (COD), Pick-up and Exchange as per Netmeds instructions. iv. Service Provider shall settle c....
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....D amount from the Corporate Debtor vide e-mail dated Page 4 of the rejoinder. 5. We have heard the Ld. Counsel appearing for the applicant as well as the respondent/Corporate Debtor and perused the averment made in the application, reply and rejoinder as well as the documents enclosed with the applications, reply and rejoinder. 6. Ld. Counsel appearing for the applicant in course of argument submitted that the applicant has engaged the respondent /Corporate Debtor for courier service vide agreement dated 06.03.2018 and as per clause 3 of the agreement, the service provider shall provide services for all the shipment in the following types for Netmeds like Shipment Delivery, Prepaid, Cash on Delivery (COD), Pick-up and Exchange as per Netmeds instructions and collect the cash on delivery shipment with enactment of officials as per the agreed time line. He further submitted that even after making the several demands Corporate Debtor has not made the amount nor they have disputed the demand and as the amount started accumulating for each month and when new amounts we are added the amended and updated amount was sent to the Corporate Debtor. He further submitted that total Rs. 50....
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....submitted that Operational debt is disputed therefore, the petitioner cannot claim it under Section 9 by filing an application under Section 9 of the IBC. 8. Since the Corporate Debtor has raised the point that petitioner is not the Operational Creditor and the amount claim is not the operational debt, therefore, at first, We would like to consider this. At this juncture, we would like to refer the definition of Operational Creditor, Operational Debt, Claim and Debt and the same are quoted below:- "5. (20) "operational creditor" means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred;" "5. (21) "operational debt" means a claim in respect of the provision of goods or services including employment or a debt in respect of the repayment of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority;" "3.(6) "claim" means- (a) a right to payment, whether or not such right is reduced to judgment, fixed, disputed, undisputed, legal, equitable, secured or unsecured; (b) right to remedy for....
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.... the time being enforce and payable to the Central Government, any State Government or any Local Authority. 10. In view of the aforesaid provision of the law, when we shall considered the submissions of Ld. Counsel appearing for the Corporate Debtor that the claim of the applicant does not come under the definition of operational debt, then we find the applicant has enclosed the courier service agreement and on the basis of that he claimed that he is the Operational Creditor. Therefore, at this juncture, we have gone through the courier service agreement, which is at page 36 of the paper book filed by the petitioners and on careful consideration of the same, we find that Corporate Debtor Madhatters Voyage Private Limited entered into a Courier Service Agreement with Netmeds Marketplace Limited (applicant) for providing the courier service and as per the agreement, the respondent was interested to provide the service. Relevant provision of the courier service agreement is quoted below:- "1. Service description: Netmeds shall give the packed and properly sealed Shipments, to be delivered to end customers who place their order online. During the Term of this Agree....
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....ve the Shipment then the Service Provider shall return the shipment back to the hub. x. Service Provider shall update the final status of each shipment to Netmeds at the end of the day which is showing under Service Provider account. xi. The Service Provider shall conduct a background verification of personnel deployed to perform Services for Netmeds hereunder at its sole cost and shall ensure that such personnel have cleared such background verification checks before deploying them for performance of Services hereunder. Further, such information should he available on demand to Netmeds. 4. Billing: i. Service Provider shall raise bills for the services rendered on monthly basis and the payment for same shall be made by Netmeds within 10 (Ten Days) days upon the receipt of the original hard copy of Invoice as mutually agreed schedule of rates (as per Annexure-1). No escalation in rates on any account will be permitted during the contractual period. ii. Service Provider agrees to provide supporting documents for all invoices submitted for payments. iii. Service Provider shall not claim any other charges and Netmeds shall be entit....