TaxTMI 
TaxTMI 
2025 (10) TMI 737
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....this Tribunal and interim order was passed on 12.10.2023. 2. Brief facts of the case necessary to be noticed for deciding the Appeal are:- 2.1. The Corporate Debtor is into the business of online / offline examination services. Indian Council of Agricultural Research ('ICAR') issued e-tender for conducting online AIEE for admission to UG, PG and Ph.D. courses including invitation of online application, online computer-based test, online counselling etc. by tender notice dated 23.03.2018. The Corporate Debtor submitted its technical and financial bids online which was accepted by the ICAR vide letter dated 09.05.2018. For executing the assignment, Corporate Debtor entered into an agreement with the Operational Creditor w.e.f. 25.05.2018 which identifying the role, responsibilities, services and duties of the parties. The Operational Creditor under the agreement was service provider to the Corporate Debtor for conduct of online AIEE test. Examination was conducted on 22nd and 23rd June, 2018. On 26.06.2018, ICAR sent an e-mail to the Corporate Debtor asking for urgent report with respect to aforesaid exams, including the CCTV footage of the examination venues at few centers. Co....
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....rveillance devices were not provided due to which Corporate Debtor was unable to contradict the allegation of mass copying at various centres and the contract was terminated by ICAR. Dispute and differences were communicated to the Operational Creditor. It was pleaded that there being pre-existing dispute between the parties, the demand is denied. The Operational Creditor filed Section 9 application claiming an operational debt and default. A counter affidavit to Section 9 application was filed by the Corporate Debtor giving details of Facility Agreement, award to contract by ICAR to conduct AIEE examination for admission to UG, PG and Ph.D. courses. The details regarding complaints received from ICAR and the correspondences with Corporate Debtor and its partner Testpan were highlighted and relevant materials were brought on the record in the counter affidavit claiming that the Operational Creditor failed to provide necessary services and there was quality issue. Section 9 application was admitted on 13.10.2021 by the Adjudicating Authority which order was set aside by this Tribunal on 09.05.2022 remitting the matter for fresh consideration. This Tribunal also noted the submission ....
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....y required to provide hard disks and pen drives. There being undisputed debt or more than Rs. 1 lakh, Adjudicating Authority rightly admitted Section 9 application. The Corporate Debtor in its reply to demand notice as well as in reply to Section 9 application sought to raise moonshine dispute. Corporate Debtor before the Ministry of Agriculture, Government of India has categorically stated that the examination was conducted in accordance with terms and there were no deficiencies in services. Corporate Debtor having taken stand before the Government that examination is successfully conducted, it cannot put any blame on the Operational Creditor and its partner. Representation dated 08.12.2018 sent by the Corporate Debtor to Ministry of Agriculture, Government of India has been referred to. The case of the Appellant that invoice dated 10.08.2018 Rs. 3,75,83,000/- reduced to Rs. 1,13,30,735/- is incorrect. Copy of invoices sent by the Operational Creditor does not record any reduction. Corporate Debtor has initiated Arbitration proceedings against the ICAR for recovery of its dues. Adjudicating Authority rightly admitted Section 9 application. 6. We have considered the submissions ....
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....age. ICAR informed that CCTV Footage was not provided and once again Corporate Debtor was requested on 03.07.2018 which is as follows:- "Dear Sirs, Vide trail mail the Firm was asked to provide the CCTV footage of 26 Examination City Centres where alleged mass copying taken place where as you have provided the CCTV footage for only seven examination city centres. There were total 35 examination venues at Delhi Examination City Centre out of that only for 16 venues CCTV footage were provided on 02.07.2018 and seen by the Agril. Edn. Division officials. The logic given by the Firm that the complete CCTV footage for all the centres would be possible to provide by 10th July, 2018 as they are in transit is not very convincing because even for all the Delhi venues, adg the CCTV footage have not been provided. Once again you are requested to provide the CCTV footage of the remaining examination city centres without any further delay so that same can be seen by the committee to arrive at the decision on alleged mass copying/cheating at these centres. Quoted text hidden] M.K. Agnihotri Controller of Examinations (Agril. Edn.) ICAR, KAB-II, Pusa, ....
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....ance of candidates from the States of Kerala, Manipur, Meghalaya, etc. That further in certain centres where your client was obliged to provide adequate infrastructure for the candidates, the details of which was already shared in advance to your client, your client failed to make adequate arrangements, leading to utter chaos at the centres, resulting into cancelation of examination at various centres. 10. That further due to not providing of adequate infrastructures at various centres like CCTV cameras and other surveillance devises at the centre, 'my Client' was not able to contradict the allegation of mass copying at various centres due to the failure of you the addressees client to provide the recorded CCTV footage of the relevant examination centres, due to which ICAR by virtue of its letter dated 30.07.2018, terminated the contract as executed between 'my Client' and ICAR resulting into exemplary losses to 'my Client'. 11. That all the aforesaid disputes and differences were well conveyed to you by virtue of 'my Client's' emails dated 15.06.2018 and 16.06.2018, by virtue of which the delay in issuance of admit cards were b....
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....the mandate of Section 9(5) of the Act, and admit or reject the application, as the case may be, depending upon the factors mentioned in Section 9(5) of the Act." 14. Notice of dispute has also been dealt in paragraph 51. In paragraph 51 of the judgment, following has been held:- "51. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(i)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the "existence" of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the "dispute" is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere blu....
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....on 30.05.2021 with respect to conduct of examination providing services for conduct of examination, issues between the parties was flagged immediately after examination. Corporate Debtor in its reply to Section 9 application has pleaded and brought relevant correspondences between the parties and it is useful to notice paragraph 8 to 18 of the reply of the Corporate Debtor, which pleading supported by relevant correspondences which were on the record:- "8. As per the said agreement, the Applicant also agreed to provide CCTV and DVR facility for recording the exam proceedings at each exam center, while the Corporate Debtor was to take backup from such DVR after completion of exam. As per clause 2 of the said agreement, the Applicant agreed to make all the arrangements along with one of its associate/partners, namely Testpan India Pvt. Ltd. ('Testpan'). 9. Thereafter on 22.06.2018, exams were conducted by ICAR at respective centers whereby the Applicant along with its partner, Testpan, had undertaken to provide all the requisites as agreed under the said agreement. After completion of examination, on 26.06.2018 (at 11:29 AM), ICAR wrote to the corporate debt....
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....18) had informed the same, the corporate debtor informed the same to the Applicant and its partner Testpan on 18.07.2018. In response to the said email, Testpan, on 19.07.2018, forwarded the issue to its state partner at Chennai to make attempt to recover the data, who had given the concerned venue to Testpan and had brought the DVR from Chennai to Noida for backup. In furtherance of this, the partner of Testpan, on 19.07.2018, requested corporate debtor to send the DVR and HDD so to enable them to try recovering the data. As no response was received from the Applicant, or Testpan or its partner in Chennai, on 03.08.2018, the corporate debtor wrote to the said parties that despite giving the requisite devices, no response was received, even Testpan's partner in Chennai was taking the corporate debtor's phone call. In response to the said email of the corporate debtor, Testpan, on 04.08.2018, sought explanation from its partner, however, no response was received. Copy of emails dated 18.07.2018, 19.07.2018, 20.07.2018, 03.08.2018 and 04.08.2018 exchange between the parties are annexed herewith and collectively marked as ANNEXURE A-4 COLLY. 15. It i....
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....red into the dispute between the parties and proceeded to examine the same and gives its opinion which is not remit Adjudicating Authority. The Adjudicating Authority was only to look into as to whether notice of dispute has been issued by the Corporate Debtor and as to whether the defence taken by the Corporate Debtor is moonshine defence and not supported by any evidence. Dispute itself has been noticed by the Adjudicating Authority in its judgment which is apparent from correspondences in relevant time. However, Adjudicating Authority recorded the finding that under the Facility Agreement, it was the Corporate Debtor who was responsible for taking the backup of the CCTV Footage through its manpower. It is further relief that on the representation of the Corporate Debtor to the Minister of Agriculture where Corporate Debtor stated that examination was successfully conducted. It is useful to notice paragraphs 18 and 19 of the impugned order, which is as follows:- "18. Moreover, during the course of the hearing, the Applicant had contended that the Respondent itself vide its letter dated 19.11.2018 addressed to the Hon'ble Minister of Agriculture, Government of India has s....