TaxTMI 
TaxTMI 
2020 (10) TMI 687
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....de' for short) read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 ('IB Rules' for short) for initiation of Corporate Insolvency Resolution Process against the Corporate Debtor, D.B. Corp. Ltd. for the recovery of the unpaid Operational Debt due. 2. The Petitioner, Embee Software Pvt. Ltd., having its address at 8, A.J.C. Bose Road, 2nd Floor, Circular Court, Kolkata - 600 017 with a Company Identification Number (CIN) - U72200WB1992PTC055123 is an authorized reseller of the Microsoft Corporation, USA ("Microsoft USA"). The Petitioner obtains the licenses in favour of the purchaser from Microsoft USA and makes payment directly to Microsoft. This is irrespective and independent....
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....the terms and conditions of the transaction (Exhibit I at pg. 82 of the petition). The tax invoice clearly stipulates a total of 8,000 licenses for a total of Rs. 50,43,975.00 with service tax of Rs. 7,06,030.50 totalling to Rs. 57,50,005.50. The payment terms stipulate 50% payment within 30 days and the balance within 60 days of delivery of the license of Microsoft Office 365 Mailing Solution as mentioned in the tax invoice. 6. It is submitted that the Petitioner has entered into a tripartite contract between Microsoft USA, the Petitioner and the Respondent as evident from Exhibit G and H to the petition. These licenses purchased by the Respondent were for a period of 3 years and each year for Rs. 50,43,975 and any order once placed can....
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....he installation of the licenses, some serious issues related to slowness of the system and unresponsive mails cropped up for few users which ultimately severely affected/obstructed the migration of all the users and in spite of various phone calls and emails to solve the aforesaid issues, no initiative was taken by the Petitioner. The Respondent has referred its email dated 16.11.2015, 27.11.2015 and 30.11.2015. And because of the unresponsiveness on the part of the Petitioner, the Respondent was compelled to revert back to the old environment and in fact had to roll back 2000 user ID's within the new set up being set up by the Petitioner. Therefore, the Respondent had no option but to cancel the Purchase Order on the ground that none o....
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.... Clause 7 of the Terms and Conditions of the said purchase Order provides for payment of balance amount only against implementation/successful installation of the licenses in the existing set up of the Respondent. Thus, the Respondent is under no obligation to make balance payment in case of Petitioner's failure to discharge their obligations in terms of the said Purchase Order and the Respondent has a right to terminate the said Purchase Order in the event of the blatant breach of the terms and obligations. 15. Now, the Petition is filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 for the unpaid Operational Debt due of Rs. 58,49,967.00 Rupees Fifty Eight Lakhs, Forty Nine Thousand, Nine Hundred and Sixty Seven Only a....
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.... and the Microsoft USA in respect of the disputes that erupted during the installation of the Office 365 Licenses. The emails referred here are dated 16.11.2015, 27.11.2015 and 30.11.2015. 17.2 The Respondent in reply to notice dated 15th March, 2017 received from the Petitioner replied in detail vide letter dated 6th April, 2017 in respect of the problems faced by the Petitioner in the installation of the Office 365 Licenses. It is also from the aforesaid from the correspondence placed on record that on more than two occasions, the Respondent has desired to cancel the Tripartite Agreement in view of the unresponsiveness attitude on the part of the Petitioner and the Respondent has to shift to old System. 17.3 On the other hand, it is....
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....ive Private Limited Vis Kirusa Software Private Limited in civil appeal No. 9405 of 2017 vide order dated 21/09/2017 inter-alia that: "Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which required 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 defence which is mere bluster. However, in doing so the Court does not need to be satisfied that the defence is likely to succeed. The court does not at this stage examine the merits of the dispute except the extent indicated above. So long as a dispute tru....