TaxTMI 
TaxTMI 
TaxTMI 
2024 (1) TMI 89
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....el technology and facilitates for the subscribers in India to access the Global Distribution System ("GDS") developed by Amadeus IT group SA wherein the GDS acts as an international network providing real time search, pricing, booking and ticketing services for various airlines. The subscribers executes GDS Subscriber Agreement where-under the Subscribers are provided upfront incentive amount to make bookings through 'Amadeus GDS' for the period agreed upon and at the rates committed therein the agreement inter-se. 3. M/s Travel Planners Ltd., the Corporate Debtor / Respondent, is a travel company and desiring to enhance their business by providing efficient and value added services to their 'clients' in the field of travel and tours shown interest in having Amadeus GDS as the sole and exclusive GDS in order to have access to reservation functionality to all their offices in India and had approached the Appellant to provide software connectivity to access 'Amadeus GDS'. 4. The Appellant had filed an application U/S 9 of the Code on 20.01.2020 against the Respondents and vide Impugned order dated 14.09.2022 passed in C.P No. (IB)-325/ND/2020, the Adjudicati....
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.... clause in the subscriber agreement that the Operational Creditor will provide the contents of any particular Airlines to the Corporate Debtor and the defence taken in this regard was not plausible and was no defence in the eyes of law. The Appellant alleged that the Corporate Debtor tried to dispute its liability on frivolous grounds which were against the written subscriber agreement. 11. The Appellant submitted that, there was no mention of "Air India" in the entire GDS Agreement and the notifications annexed by the Respondent regarding termination of Air India's use of Amadeus GDS of the Appellant did not have any bearing to the present matter as under the GDS Agreement, there was no obligation upon the Appellant to specifically provide for the Amadeus GDS for Air India POS to the Respondent. As per the agreement there was no clause which stipulates that the Appellant had agreed to provide details of any Airlines. The agreement only stipulates that the Respondent was duty bound to use the Amadeus Global Distributors Systems for its total reservations so as to avail the upfront incentives which were to be adjusted against the loyalty incentives payable. 12. The Appellant a....
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....of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application." (Emphasis Supplied) 18. It is the case of the Respondent that based on the above ratio, it is clear that the 'pre-existing dispute' has to be only exist in fact and should not be spurious, hypothetical or illusory and the Adjudicating Authority was obliged to reject Section 9 application in view of clear pre-existing disputes. 19. The Respondent brought out that the Appellant sent a demand notice under Section 8 of the Code to him on 20.11.2019 claiming an amount of Rs. 75 lakhs. However, in accordance with section 8(2)(a) the Respondent vide reply dated 27.11.2019 brought the notice of the Appellant of the pre-existing disputes between the parties. 20. The Respondent submitted that he received trade circulars from Air India on 08.11.2018 and 01.12.2018 declaring that Amandeus Software can no longer be used for accessing the Air India Point of Sale content with effect from 04.12.2019, which came as a shock to the Respondent who was under the GDS Agreement dated 09.08.2018....
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.... content will no longer be available to Amadeus GDS subscribers in all the markets including India. Since the Respondent was in the business of travel related services, the said issue must have impacted the day-to-day operations of the Corporate Debtor's Business. 6. It is evident from the documents placed on record by the Corporate Debtor and the Operational Creditor that there exists a pre-existing dispute between the parties before issuing the demand notice and it is the mandate of lawthat if there exists a pre-existing dispute between the parties the Adjudicating Authority must reject the application under section 9(5)(ii)(d) of the Insolvency and Bankruptcy Code, 2016. Reliance is placed on the landmark judgement of Hon'ble Supreme Court of India in Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software Private Limited 2018 1 Supreme Court Cases 353. ....In the light of the above said facts and after giving careful consideration to the entire matter and hearing the arguments of the learned counsel for the Operational Creditor as well as the reply filed by the Corporate Debtor and upon appreciation of the documents placed on record to substantiate their respective claims....