AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2017 (6) TMI 1360
X X X X Extracts X X X X
X X X X Extracts X X X X
....n on 1st May, 2012 respectively. The scope of the services as set forth in the contract was required to be performed solely by Mr. Sunil Tandon being a partner of M/s. Capital Partners. Duration of the contract was for a period of five years with effect from 1st December, 2011. As per the contract dated 30.11.2011 the respondent company was required to pay advisory fees of Rs. 1.00 crore per annum to M/s. Capital Partners. As per the agreement dated 01.12.2011, M/s. Capital Partners was entitled to a bonus of Rs. 1.00 crore and upon successful implementation of the initiative, M/s. Capital Partners is entitled for bonus of Rs. 1.00 crore. As per the amended contract dated 01.05.2012, Mr. Sunil Tandon was designated as a Principal Advisor and monthly fee was increased to Rs. 13.00 lacs and M/s. Capital Partners were entitled for a fee of Rs. 2.00 crores on completion of the BCG assignment. It was further agreed upon between the parties that, in case of a conflict in the terms and conditions as envisaged in the letter dated 01.05.2012 shall prevail. 3. According to the petitioner, in June 2012 the BCG was successfully completed and as per letter dated 01.05.2012 the respondent compa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....evant documents to the company. The company by letter dated 02.11.2016 denied the liability and raised ill-founded allegations. Thereafter, on 04.02.2017, M/s. Capital Partners and Mr. Sunil Tandon through advocate served demand notice on the respondent company calling upon the company to pay outstanding amount. The company, by reply dated 16.02.2017 styled as a notice of dispute made false allegations without substantiating the same. According to the petition, the respondent company is admittedly liable to make payment of outstanding amount but it has chosen not to make payment. Hence this petition is filed before this Tribunal on 12th May, 2015 after serving copy on the Corporate Debtor. 4. This petition is listed before this Tribunal for the first time on 16.05.2017. This Tribunal directed petitioner to issue notice to the Corporate Debtor and file proof of service. On 19.05.2017 learned counsel for respondent company requested for time to file documents. On 26.05.2017, respondent company filed reply along with documents. This Tribunal heard arguments of learned counsel for the petitioner and learned senior counsel for the respondent. 5. It is the case of the respondent that t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....se of Annapurna Infrastructure P. Ltd. vs. Soril Infra Resources Limited observed that definition of the word "dispute" is not exhaustive but is, in fact illustrative. It is further stated that, the corporate debtor would be well within his right to show that goods and services were not supplied at all or the supply was far satisfactory in case of demand raised by an operational creditor. It is further stated that, the claim is time barred as it is evident from the email of Mr. Sunil Tandon dated 22.06.2015. In that email it is stated that the amount became due in 2012 and that it has remained due for more than three years. Petitioner did not make any effort to claim the amount till 2017. Since the claim amount cannot be recovered in law, the petitioner filed the present application under Insolvency and Bankruptcy Code, 2016 with sole intention to pressurise the respondent company to pay the amount. 9. It is further stated that Mr. Sunil Tandon managed to get a statement allegedly acknowledging the debt, signed by a Jr. unauthorised employee to revive the time barred debt. Further, case of the respondent is that the company is a viable unit and has great commercial prospects. The ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ny. Old management of the respondent company had all the reasons to ensure that Mr. Sunil Tandon was able to recover the amount from the new management of respondent company. If there had been a genuine claim, the old management ought to have made payment in 2012 itself. Even according to the petitioner, the claim was due in June 2012 and, therefore, it would be recoverable till 2015 only. There is no valid authorisation to the person who sent email from the accounts department, to the petitioner. In absence of valid authorisation, such email cannot be construed to be an email issued by the respondent company and no liability can be fastened upon the company. Ledger account produced by the petitioner vide annexure "N" is not signed by responsible officer of the company or by any officer having authority and the said documents appears to be concocted. Emails dated 14.03.2016 and 09.06.2016 are nothing but elaborate exercise undertaken by Mr. Sunil Tandon for extorting money from new management of respondent company. Notice dated 13.01.2016 issued by petitioner was completely misconceived and frivolous. 11. Learned counsel appearing for the petitioner referring to the advisory contr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....enior counsel for the petitioner contended that in order to admit an application filed by operational creditors under section 9, this adjudicating authority shall make an effort to find out as to whether it is a bona fide dispute or not. He further contended that the dispute need not be pending in a suit or arbitration. It can be even by way of reply to the demand notice provided if the dispute raised by the corporate creditors is bona fide and substantial dispute. Reliance is placed upon the decision in IBA Health (India) Private Ltd. Vs. INFO-DRIVE SYSTEMS SDN BHD reported in (2010) 10 S.C. Cases page 533 wherein it is held if debt is bona fide disputed on substantial grounds petition for winding-up shall not be entertained. 13. Learned counsel appearing for the petitioner cited the decision rendered by Hon'ble National Company Law Appellate Tribunal in the matter of Kirusa Software Private Limited versus Mobilox Innovations P. Ltd. on 24.05.2017. In that decision it is clearly held that the dispute in Insolvency & Bankruptcy must relate to specified nature in clause (a)(b) or (c) of sub-section 6 of section 5 of the code. Hon'ble Appellate Tribunal further held that the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....applies to all kinds of disputes, in relation to debt and default. The expression used in sub-section (2) of section 8 of the I & B code existence of a dispute, if any is disjunctive from the expression record of the pendency of the suit or arbitration proceedings. Otherwise the words dispute, if any, in sub-section (2) of section 8 would become surplus usage. Sub-section (2) of section 8 of the I & B code, cannot be read to mean that a dispute must be pending between the parties prior to the notice of demand and that too in arbitration or a civil court. Once parties are already before any judicial forum/authority for adjudication of disputes, notice becomes irrelevant and such an interpretation renders the expression existence of a dispute, if any, in sub-section (2) of section 8otiose. The statutory requirement in sub-section (2) Section 8 of the I & B code is that the dispute has to be brought to the notice of the Operational Creditor. The two comes post the word dispute (if any) have been added as a matter of convenience and/or to give meaning fullness to sub-section (2) of section 8 of the I & B code. Without going into the grammar and punctuation being hapless....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., the dispute must be pending in suit or arbitral proceedings which is instituted before the receipt of demand notice under section 8 of the code. 19. In view of the decision of National Company Law Appellate Tribunal in Kirusa Software Pvt. Ltd. versus Mobilox Innovation P. Ltd. decided on 24-05-2017 referred to supra, the dispute need not be in a suit or other proceedings and it could be even by way of reply to Demand notice but the Adjudicating Authority has to see whether the dispute raised by the corporate Debtor in the reply notice is a bona fide on substantial grounds or it is only raised to give a colour of dispute or it is illusory dispute. 20. Considering the findings of Hon'ble Appellate Tribunal, I proceed to examine whether the dispute raised by respondent company is a bona fide dispute on substantial grounds or not. 21. In the petition in page 11 column 2 it is stated that the date of default of BCG assignment is June 2012. For the first time petitioner raised the invoice on 31.03.2015. Till such time no demand was made by the petitioner to Pipavav Defence & Offshore Engineering Company Ltd. that too on the request of the previous management of the Respondent C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....,30,232/- is recoverable from the applicant since 31.03.2015 with interest @ 12% per annum and petitioner is still using property of the company viz. Skoda Superb Elegance car and air conditioner. This claim of the respondent against the petitioner can be treated as a dispute referable to clauses (a) of sub-section 6 of section 5. The dispute that Boston Consultancy Group Assignment had not been successfully completed is also a bona fide dispute covered by clause (b) of sub-section 6 of section 5. 26. This proceeding is initiated to trigger insolvency resolution process against the respondent company which is having paid up share capital of Rs. 7,36,20,62,690/- with reserve and surplus of Rs. 7,10,71,00,000/-. Petitioner did not state whether there are any other secured creditors that are payable by the respondent company and the company is unable to pay its creditors. Petitioner was appointed on advisory contract basis to undertake certain works by Pipavav Defence and Engineering Company Limited, which was taken over by Reliance Defence & Engineering Ltd. on 18.01.2016. Petitioner for the first time raised invoice on 31.03.2015 against Pipavav Defence and Engineering Company Limi....