TaxTMI 
TaxTMI 
2021 (6) TMI 760
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....by the Appellant before the Adjudicating Authority. 3. The facts of the case are as follows: - The Appellant (Operational Creditor) Manipal Media Network Private Limited, and the Respondent (Corporate Debtor)Vishwakshara Media Private Limited, entered into three separate agreements wherein the Appellant became the printingpartner of Corporate Debtor for printing of three newspaper editions and supplements of newspaper "Vishwavani" issued from Gulbarga, Hubli and Manipal. These three separate agreements, all signed on 4.12.2015, have been entered into between the Appellant and the Respondent - first one relating to the Gulbarga printing facility, the second one relating to the Hubli printing facility and the third one relating to the Manipal printing facility for Vishwavani newspaper and its supplements. The Appellant's case is that the Respondent kept on making requests through emails for printing jobs even after the expiry of the term of the agreements on 3.12.2017 and the Appellant kept on raising invoices for printing charges every fortnight as was required under the agreement, and the Respondent continued to make payments till January 2018. On the other hand, the Respondent s....
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....bmitted their written notes and presented oral arguments in detail. 7. The Appellant has also stated that the Adjudicating Authority has made an unjustified conclusion in the Impugned Order that the debt is based on an agreement that has lapsed and the application under Section 9 of IBC filed by the Appellant is untenable which is basically for recovery of the amount alleged to be due and also that there was a pre-existing dispute. The Adjudicating Authority has also held that the amount claimed in invoices which includes 18% rate of interest applied on pending amount is not in accordance with the relevant clause of the agreement and the Adjudicating Authority is not required to do an enquiry to calculate the exact amount due. On these grounds the application of Appellant under Section 9 of IBC has been dismissed. 8. The Ld. Counsel for Appellant has stated in the written submission that the Respondent Vishwakshara Media Private Limited (Corporate Debtor) approached the Appellant Manipal Media Network Ltd. (Operational Creditor) for printing job of its three newspaper editions at Gulbarga, Hubli and Manipal and three separate agreements were signed on 4.12.2015 between the partie....
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....nvoices as per Clause 8 of the agreement. 10. The Learned Counsel for Appellant has argued that for 16 days there was no printing, since the Corporate Debtor failed to supply newsprint for printing of the newspaper editions and supplements. In support of his arguments, the Applicant has cited e-mail dated 7.3.2018 (page 205 of Appeal Memo) from Basavaraju, an employee of Corporate Debtor to Sudarshan Sherigar, an employee of Operational Creditor. Again on 7.3.2018, Sudarshan Sherigar wrote an email that newsprint is not reaching on time and they do not have any newsprint stock to print the newspaper. Vishveshwar Bhatt of the Corporate Debtor wrote on 5.3.2018 to Sudarshan Sherigar that since there is newsprint crunch there are delays in sending it to Manipal. Again in an e-mail dated 27.2.2018 a representative of Corporate Debtor has urged the Operational Creditor to use newsprint of other publications which may be available with them for the time being. All these e-mails go to show that newsprint which was to be supplied by the Corporate Debtor as per the agreement was not reaching the Operational Creditor on time and hence there was a delay in printing of the newspapers. Therefo....
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....y of amounts that are outstanding. 13. The issues that are germane to this appeal are: (i) Whether the agreement that had allegedly lapsed on 3.12.2017 was extended by conduct, as has been claimed by the Appellant and whether the printing jobs carried out at the request of Corporate Debtor will be covered by the terms of the agreement (ii) Whether the percentage of wastage of newsprint and the minimum number of chargeable copies are in consonance with the provisions in the agreement and is there a preexisting dispute regarding percentage as has been claimed by the Respondent, (iii) Whether the Appellant can invoke provisions of IBC in view of Clause 24 of the agreements for printing, which relates to arbitration under Arbitration and Conciliation Act. 14. When we consider the conduct of the parties after the lapse of the said agreement on 3.12.2017, we find that the Respondent continued sending emails for printing to the Appellant and the Appellant was duly complying with these requests. Therefore, written communication between the two parties by giving orders on email for printing jobs for the newspaper editions and acceptance of those orders by the Appellant was in the na....
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....this section, a "demand notice" means a notice served by an operational creditor to the corporate debtor demanding repayment of the operational debt in respect of which the default has occurred. 9. (1) After the expiry of the period of ten days from the date of delivery of the notice or invoice demanding payment under sub-section (1) of section 8, if the operational creditor does not receive payment from the corporate debtor or notice of the dispute under sub-section (2) of section 8, the operational creditor may file an application before the Adjudicating Authority for initiating a corporate insolvency resolution process. (2) xxxxxxxxxx" 16. The Demand Notice has to be responded to within 10 days, as required in Section 8(2) for the purpose of bringing to the notice of the operational creditor the existence of a dispute or evidence of repayment of operational debt. The Corporate Debtor has not done so, prompting the operational creditor to take action as per Section 9 (1). Later during hearing before the Adjudicating Authority, the Corporate Debtor raised the issue of existence of a dispute. It appears to be a spurious dispute, raised to ward off the responsibility of repa....
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....the Appellant not printing the newspaper for 16 days and the loss incurred by the Respondent on this account. The Clause 3 of the agreement stipulates that the responsibility of supplying newsprint lay with the Corporate Debtor. Hence this issue does not provide any help to the Respondent in his case. 21. Finally coming to the issue of high percentage of wastage of newsprint in printing, as alleged by the Corporate Debtor, we find that the said agreements make it very clear that the minimum number of chargeable copies will be 10,000. In addition, the said agreements also stipulate that the wastage will be less than 4%. This wastage, quite obviously, is in relation to printing of 10,000 copies. It is understood that in printing jobs as the number of copies increase the quantum of wastage decreases and, conversely, as the number of copies decrease the quantum of wastage increases. In the present case, the number of copies that were required by the Respondent to be printed were well below 10,000, and therefore the quantum of wastage was more than 4%. In any case the invoices raised before 22.2.2018 were settled even though the corporate debtor had raised the issue of high wastage per....