2020 (10) TMI 687 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - recovery of the unpaid Operational Debt due - existence of debt and dispute or not - HELD THAT - The Demand Notice is issued on 15.03.2017. This application has been filed by the Petitioner on 28.08.2018 i.e. after 17 months. This Adjudicating Authority is not the right forum to examine and adjudicate as to which portion of the claims are admissible. The Adjudicating Authority will also not examine the merits of the dispute. There are repeated complaints of the Respondent about non-functioning of the Office 365 Licenses and counter complaints of the Petitioner regarding absence of Essential System Requirements in the organization of the Respondent. Thus, there is sufficient material to believe that disputes certainly exist in the facts of the present case regarding non-functioning of the System provided by the Petitioner - Pre-existing dispute before the filing of this application is observed. The petition does not deserve admission - Petition rejected.

Summary

Issues:
1. Initiation of Corporate Insolvency Resolution Process under Section 9 of the Insolvency and Bankruptcy Code, 2016 for recovery of unpaid Operational Debt.
2. Dispute regarding non-functioning of Office 365 Licenses and cancellation of Purchase Order.
3. Examination of existence of dispute prior to the issue of demand notice.

Analysis:
1. The petition was filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 for the recovery of unpaid Operational Debt from the Corporate Debtor. The Petitioner, an authorized reseller of Microsoft Corporation, supplied licenses to the Respondent for a sum of ?50,43,975. The Respondent made a part payment of ?29,24,984 and later expressed dissatisfaction with the licenses' performance, leading to a dispute over the payment of the balance amount within the stipulated time frame.

2. The dispute primarily revolved around the non-functioning of the Office 365 Licenses supplied by the Petitioner. The Respondent cited issues with system performance and unresponsive mails, leading to a cancellation of the Purchase Order. The Petitioner claimed that the Respondent's lack of Essential System Requirements and Network Bandwidth caused the license malfunction. The terms of the Purchase Order indicated that the balance amount was payable only upon successful implementation of the licenses.

3. The Adjudicating Authority observed a pre-existing dispute between the parties before the demand notice was issued. The Respondent's repeated complaints about non-functioning licenses and the Petitioner's counter complaints about system requirements indicated a genuine dispute. Citing the Supreme Court's definition of "dispute," the Authority emphasized the need for a plausible contention requiring further investigation. As a result, the petition was rejected due to the established existence of a dispute prior to the demand notice, thereby not warranting admission under the Code.

In conclusion, the judgment dismissed the petition under CP(IB) No. 455 of 2018, clarifying that the observations made did not express an opinion on the dispute's merit. The right of the applicant to pursue the matter before another forum was preserved, and no costs were imposed. The Registry was directed to communicate the order to both parties via registered post/speed post.