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2022 (11) TMI 932
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...., being dissatisfied with the 'Impugned Order' dated 23.06.2022 in CP (IB) No.67/BB/2021 passed by the 'Adjudicating Authority' (National Company Law Tribunal, Bengaluru Bench, Bengaluru). 3. The 'Adjudicating Authority' (National Company Law Tribunal, Bengaluru Bench, Bengaluru) while passing the 'Impugned Order' dated 23.06.2022 in CP (IB) No.67/BB/2021 at 'Paragraph No.18' had observed the following: - "It is the settled law that the relevant date for determining the existence of a dispute is the date of the demand notice issued under Section 8 of the IBC, 2016. In the instant case, the Petitioner at the first instance, issued Annexure-8 Demand Notice dated 04.09.2020 for which the Respondent/Corporate Debtor given a reply vide Annexure-A9 dated 03.10.2020, wherein categorically mentioned about the various disputes pending between the parties. Admittedly, the Petitioner having realized that Annexure-A8 demand notice dated 04.09.2020 was not in accordance with the facts and transactions occurred between the parties, issued a fresh Annexure-A10 notice dated 05.03.2021 again under Section 8 of the IBC, 2016. Further, admittedly the Petitioner in his final notice u/s 8 of the IBC....
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.... thus falling clearly outside the ambit of a 'pre-existing dispute', as per Section 8 (2) of the Insolvency & Bankruptcy Code, 2016. 7. Advancing his argument, the Learned Counsel for the Appellant comes out with a 'Plea' that the CP (IB) No.67/BB/2021 filed by the Appellant / Petitioner / Operational Creditor, before the 'Adjudicating Authority' (National Company Law Tribunal, Bengaluru Bench, Bengaluru) was fully satisfying the ingredients of Sections '8' and '9' of the Insolvency & Bankruptcy Code, 2016. 8. Expatiating his submission, the Learned Counsel for the Appellant puts forward an argument that the reliance placed by the Respondent in respect of the 'Commercial Suit No.229/2021', as an 'existing dispute', between the parties, is a 'malafide' endeavour to escape from the 'Liability' under the Insolvency & Bankruptcy Code, 2016. 9. The Learned Counsel for the Appellant had issued a final 'Demand Notice', as per Section 8 (1) of the Code, 2016 on 05.03.2021 to which the Respondent had not sent the 'Reply', within the 'statutory period' of '10 Days', only to establish on 'false defence' of a 'pre-existing dispute'. The Respondent had preferred the 'Commercial Suit in OS No....
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....communications' dated 19.03.2020 and 27.03.2020 issued to the Appellant that it was liable to pay the amounts to the Appellant, for the services provided by it and in fact Mr. Jayaraj, who was employed with the Respondent as the 'Group Chief Finance Officer' and Mr. Sundar, who was employed with the Respondent, as 'Chief Financial Officer', were aware of the payments that were made and owed to the Appellant. 14. The version of the Appellant is that the Respondent had failed to effect payment in respect of the amounts owed by it to the Appellant and indeed a 'Legal Notice' dated 13.08.2020, was issued to the Respondent, demanding the payment outstanding to it (Principal sum of Rs.2,36,59,289/- payable for the services rendered to it by the Appellant and the principal amount of Rs.44,73,424/- payable for the services rendered by the Fourthlion Technologies Pvt. Ltd. 15. According to the Appellant, a 'Demand Notice', dated 04.09.2020 was issued by the Appellant, to the Respondent, demanding the payment of the 'Operational Debt', being the 'Principal Sum' of Rs.2,36,59,289/- and the Respondent had issued the 'Reply Notice', on 03.10.2020 through its 'Lawyers'. 16. Not resting with t....
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.... Bankruptcy Code, 2016 indicates 'Dispute', it can be taken into account by the 'Adjudicating Authority' ('Tribunal'). 24. As a matter of fact, that the 'Corporate Debtor' must exhibit that the 'pre-existing Dispute' or that the 'Dues', are not payable in 'Law'. As such, the 'Adjudicating Authority' ('Tribunal') is to subjectively satisfy itself, whether there is a 'pre-existing Dispute', before the 'Receipt' of 'Demand Notice'. It is to be remembered that neither the 'Adjudicating Authority', ('Tribunal') nor the 'Appellate Authority', can go into the 'veracity' and 'authenticity' of such 'Disputed Documents' or 'contentious issues' in detail, because of the fact, that the 'Proceedings' under the Insolvency & Bankruptcy Code, 2016 are 'summary' in nature. 25. In fact, the 'Disputed Questions' relating to 'Claim' or 'Counter Claim', cannot be decided by the 'Adjudicating Authority' ('Tribunal') in an 'Application' under Section 9 of the Insolvency & Bankruptcy Code, 2016. Suffice it for this 'Tribunal', to make a mention that in a 'Petition' under Section 9 of the Insolvency & Bankruptcy Code, 2016, the 'Question' on 'Merit of Dispute', cannot be gone into by an 'Adjudicating Aut....
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....mers and had engaged the services of the Company known as 'Fourthlion Technologies Pvt. Ltd. through the 'Agreement' for 'Digital Application Development Services' dated 05.05.2016. On 04.06.2018, an 'Addendum', was executed to the 'Digital Application Development Services Agreement' dated 05.05.2016, and the same was executed between the 'Respondent' / 'Corporate Debtor' and the 'Appellant' / 'Petitioner' / 'Operational Creditor', because the 'Appellant' / 'Petitioner' / 'Operational Creditor' is the 'Assignee' of the 'Rights' and 'Liabilities' of M/s. Fourthlion Technologies Pvt. Ltd. Also, that under the 'Digital Application Development Services Agreement', executed with the 'Corporate Debtor', in terms thereof, the 'Operational Creditor', had rendered services to the 'Corporate Debtor', as agreed to its complete satisfaction. 29. The specific case of the 'Appellant' is that for the 'Services' rendered under the 'Agreement', the 'Appellant' / 'Petitioner' / 'Operational Creditor' had raised '12 invoices' on the 'Respondent' / 'Corporate Debtor' between 04.02.2019 and 10.02.2020, also, the 'Appellant' / 'Petitioner' / 'Operational Creditor' had raised 'invoices' for the work don....
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....an 'Application' to initiate the 'Corporate Debtor Insolvency Resolution Process' (CIRP), in the matter of 'Respondent' / 'Corporate Debtor'. 32. The 'Appellant' / 'Petitioner' / 'Operational Creditor', on 13.08.2020 addressed a letter to the 'Respondent' / 'Corporate Debtor', inter alia, stating that the 'Appellant' / 'Petitioner' / 'Operational Creditor' has rendered services in the 'Agreement' and had raised 'invoices', periodically, which were payable by the 'Respondent' / 'Corporate Debtor', within a period of '15 Days' from the 'dates of invoices' and further that the 'Respondent' / 'Corporate Debtor' was called upon to pay a sum of Rs.2,36,59,289/- to the 'Appellant' and Rs.44,73,424/- to Fourthlion Technologies Pvt. Ltd., within 'Seven Days' from the date of receipt of the 'Notice'. 33. In fact, the 'Appellant' / 'Operational Creditor' had issued a 'Demand Notice' to the 'Respondent' / 'Corporate Debtor' dated 04.09.2020 in 'Form 3', wherein the total sum of 'Debt' was mentioned as Rs.2,36,59,289/- and this was a 'Principal Amount', due to be paid by the 'Respondent' / 'Corporate Debtor' to the 'Appellant' / 'Operational Creditor'. Further, according to the 'Appellant' / ....
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....kruptcy Code, 2016, it was mentioned that the 'Service Agreement' dated 05.05.2016 executed between the 'Respondent' / 'Corporate Debtor' and Fourthlion could not be relied upon by the 'Appellant' / 'Operational Creditor' and to that extent the 'Demand Notice' was misconceived and further that 'this Agreement' was terminated, etc. Besides this, at Paragraph '9' of the 'Reply' dated 03.10.2020 of the 'Respondent' / 'Corporate Debtor', it was clearly mentioned that "in fact, our client has, in the past, pointed out several deficiencies in the alleged services provided by your client". This has led to disputes between the parties that are alive and subsisting. These 'disputes', have existed much prior to September 4, 2020, etc. 39. It is to be pointed out that the 'Proceedings' under the Insolvency & Bankruptcy Code, 2016 are 'summary in nature'. If the dispute raised is plausible and a tangible one and not a 'moonshine' defence taken by the concerned party, then, the 'Petition', under Section '9' of the Insolvency & Bankruptcy Code, 2016 cannot be admitted by the 'Adjudicating Authority' in the considered opinion of this 'Tribunal'. In fact, when the 'defences' / 'disputes' raised b....