TaxTMI 
TaxTMI 
2021 (11) TMI 609
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Interactive India Pvt. Ltd. 112 ASHIRWAD AHMEDABAD STREET CARBAC BUNDER, MASJID EAST MUMBAI - 400009 Sundry Debtors APRIL-2016 TO MARCH-2019 M/s. CLEAR CHANNEL INDIA PVT LTD Bill Date Due Date Bill Period Invoice No. Amount Receivable (prin + tax - TDS Int Amount 01.07.2016 01.08.2016 01.04. 2016 TO 30.06.2016 INV- CCMPL- D-1516-08 678000 433920 01.10.2016 01.08.2016 01.07.2016 TO 30.09.2016 INV- CCMPL- D-1617-12 2237400 1431936 01.10.2016 01.08.2016 01.07.2016 TO 30.09.2016 INV- CCMPL- D-1617-13 678000 433920 02.01.2017 02.02.2017 01.10.2016 TO 31.12.2016 INV- CCMPL- D-1617-23 2237400 1118700 02.01.2017 02.02.2017 01.10.2016 TO 31.12.2016 INV- CCMPL- D-1617-24 678000 339000 15.03.2017 15.04.2017 2016-17 INV- CCMPL- D-1617-32 1299500 545790 15.03.2017 15.04.2017 01.01.2017 TO 31.03.2017 INV- CCMPL- D-1617-33 2237400 939708 15.03.2017 15.04.2017 01.01.2017 TO 31.03.2017....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Operational Creditor amount, i.e. 3 (Three) Kiosks for New India Assurance and remit an amount of Rs. 79,20,000 and 1 (One) Kiosk to LIC at Rs. 2,00,000 per month, i.e. total Rs. 24,00,000 and the balance Rs. 11.50 lakhs to be paid to the Operational Creditor before 31.03.2017. 3.5. The Petitioner also submits that the Petitioner and the Corporate Debtor had an understanding of 50-50% profit sharing ratio to a minimum payment/guarantee of Rs. 90,000 per month per Kiosk, i.e., Rs. 60,000 per month per Kiosk to be paid on monthly basis to be paid before 10th of every month and Rs. 30,000 per month per Kiosk to be calculated every quarter and to be paid within 60 days from that date. 3.6. The Petitioner further submits that the Corporate Debtor generated a business of an amount of INR 3.75 Crore by using the Operational Creditor's Kiosk and received timely payments from the clients. 4. As per the Petition the date of default is on 01.08.2016. 5. According to the Petitioner, the Corporate Debtor has acknowledged the debt amount due and payable to the Operational Creditor. 6. The Petitioner issued a Demand Notice in Form No. 3 u/s. 8 of the IBC on 19.02.2019 to the....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... or services nor is it for the repayment of dues payable to the Central or State government. As the claim in the present proceedings is not a claim in respect of either of the classifications stated above, the Respondent submits that the same is not an 'operational debt' and, therefore, the Petition is not maintainable. 9.1. Further, the Respondent submits that serious disputes exists prior to the date of issue of Section 8(2) Demand Notice by the Applicant. The Applicant is in clear breach of the terms of the Amendment Agreement and is guilty of various tortious acts causing grave damage, injury and loss to the Respondent. Further the Respondent mentions that these facts were brought to the notice of the Applicant as far back as in 2017 by written legal notice, however, the Applicant chose to remain silent and did not address any of the allegations levelled by the Respondent. Thus, there is pre-existing disputes between the Applicant and the Respondent. 9.2. The Respondent vehemently submits that it is a settled law that in the event there is a pre-existing dispute in terms of Section 8(2) of the Code, the alleged Operational Creditor as also the alleged Operational ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing the alleged principal amount claimed; and/or any interest whatever thereon whatsoever; and/or any other amounts whatsoever. 9.7. The Respondent submits that the documents annexed and relied upon by the Applicant are certain Agreements, invoices and e-mail correspondence, however, these documents failed to show any default whatsoever. Further submits that the email correspondence, in fact, is an evidence and admission of the pre-existing disputes between the Applicant and the Respondent. Also submits that in view of the Respondent's reply to the statutory demand notice, the Petition is not maintainable as per Section 9(1) of the Code, therefore, in terms of Section 9(5)(ii)(d) of the Code, the Petition be dismissed. Also submits that the Petition is not accompanied by (a) An Affidavit as required by Section 9(3)(b) of the Code or (b) A copy of the certificate from the financial institutions as required by Section 9(3)(c) of the Code and therefore, not maintainable. 10. Rejoinder by the Petitioner In the Rejoinder the Petitioner submits that:- - The Corporate Debtor wrongfully alleges the intentions of the Operational Creditor in filing application with the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d the goods and services provided by the Operational Creditor till such time and was aware of the legitimate payments to be made. FINDINGS 11. This Petition u/s. 9 has been filed by M/s. Infobay Interactive India Private Limited (Petitioner/Operational Creditor) against M/s. Clear Channel India Private Limited (Respondent/Corporate Debtor) for a total amount of Rs. 1,07,23,700/- along with interest of Rs. 55,27,734/-. 12. In Part-IV of Form No. 5 in the Petition, it has been mentioned that the Operational Creditor had assigned exclusive rights for advertisement to the Corporate Debtor of the MCGM in kiosks installed in Mumbai. This arrangement between the parties by way of an agreement was dated 08.08.2014 was based on 50-50% profit sharing ratio and certain minimum payment/guarantee per month per kiosk. However, subsequently the Agreement between the parties was revised (Revised Agreement) on 09.03.2016. 13. As per the revised Agreement, both the parties were free to compete with each other as per Clause-I of the Agreement subject to other provisions of the Agreement. It is the case of the Corporate Debtor that the Section which restricts the Operational Creditor was e....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is that Mr. Jerald was a trusted senior employee of the Respondent and was privy to trade and commercial secrets and product pricing. The Respondent mentions that Jerald committed breach of terms of his employment by seeking to compete with Respondent within a few months of cessation of his employment and opening up another Company by the name Brandesque Media Private Limited (Brandesque). The Respondent, without attaching any proof, further mentions that this "Brandesque Media" was a front of the Operational Creditor Company which had taken away lot of business from the Corporate Debtor and thereby leading to a substantial loss of revenue to the Corporate Debtor. The Bench notes that the basis of the dispute posed by the Corporate Debtor is based on his averments that Mr. Jerald Stephen was in connivance with the Operational Creditor and got the orders of the Corporate Debtor diverted to the Operational Creditor. However, the Bench finds that this argument does not hold ground based on the fact that Mr. Jerald continued as an employee of the Corporate Debtor till May 2017 and all the bills/invoices and payments relate to the period up to 31st March 2017 which pre-dates the month o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bmitted by the Corporate Debtor are hypothetical and illusory in nature and appears fit to be rejected. 21. The Bench further notes that out of the 9 invoices raised, the Corporate Debtor had admittedly deducted and paid TDS under 3 invoices. The details of which are as under:- Invoice dated Invoice Amount before Tax Invoice Amount after Tax Total TDS deducted Total TDS Deposited Date of Booking 01-07- 2016 19,80,000 22,77,000 39600 39600 22^nd Nov 2016 01-10- 2016 19,80,000 22,77,000 39600 39600 31^st Jan 2017 02-01- 2017 19,80,000 22,77,000 39600 39600 31st May 2017 22. The very fact that the Corporate Debtor has paid TDS leaves no iota of doubt with the Bench that it has availed the services as enumerated corresponding to that particular invoice. The Bench notes that the total value of these 3 invoices for which the TDS has been paid comes to about Rs. 59,40,000. The Petitioner in his 'Rejoinder' has submitted Form 26AS admitting the deduction of TDS and payment to Tax Authorities, which is as under:-. 23. Therefore, even assumin....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... suspended or interrupted during "Moratorium" period. This direction shall have effect from the date of this Order till the completion of Insolvency Resolution process. 27. Accordingly, CP(IB)-1243/MB/2019 stands "Admitted". 28. The Corporate Insolvency Resolution Process shall commence from the date of this order. 29. Registry is directed to communicate this order to both the parties and the IRP immediately. ============= Document 1 infobay interactive india private limited 112 Ashirwad Ahmedabad Streal Cama Bunder Mumbai- 400 009 Tel +91 22 23481668 25483643 23482360 Fax +91 22 23481468 website www.infobay dia com email [email protected] Invoice No.: INV-CCMPL-D-1516-08 To M/s. Clear Channel Mumbai Pvt. Ltd., Parekh Mahal, 1st Floor, Churchgate, Mumbai 400001. Client : Clear Channel Mumbai Pvt. Ltd., Mumbai. Contract No. As per agreement dated 9th March 2016 Description 2016 infobay Date: 01-07-2016 Period 01-04-2016 to 30-06-2016 For Outdoor advertising at the following sites between the period of 1st April 2016 and 30th June No. Location LOCATIONS Display of The New India Assurance Co. Ltd. at Ch....