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2021 (8) TMI 207 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - pre-existing dispute between the parties or not - time barred claim or not - HELD THAT - This Bench is of the opinion that the invoices for the month of Oct-Nov 2015 were outstanding and there were exchange of emails between he parties regarding the pending invoices, however, the Corporate Debtor in his reply have claimed that they have not been able to reconcile or open the logs sent by the Petitioner. There has been a dispute raised by the Corporate Debtor with reference to the SMS count as per the email dated 04.02.2016. Though there was no dispute regarding payment terms as raised by the Corporate Debtor but evidently there has been dispute with regard to the SMS count as claimed by the Petitioner in the said invoice and SMS count as recorded by the Corporate Debtor, this amounts to be a pre-existing dispute between the parties and in view of judgment of Mobilox Innovations Private Limited vs. Kirusa Software (P) Limited 2017 (9) TMI 1270 - SUPREME COURT , the contents of the email dated 04.02.2016 amounts to be plausible dispute between the parties. Time Limitation - HELD THAT - The said claim is also time barred in view of the fact that the invoices pertaining to the year 2015-2016 and the petition was filed on 07.05.2019, the last payment made by the Corporate Debtor was on 01.12.2015. The email of the Corporate Debtor raising a dispute dated 04.02.2016 which may have extended the limitation also ends by February, 2019 and in view of the fact that the petition was filed on 07.02.2019, this Petition is barred by limitation. Petition dismissed.
Issues Involved:
1. Whether the claim made by the Petitioner is time-barred. 2. Whether there was any pre-existing dispute raised by the Corporate Debtor. Issue-wise Detailed Analysis: 1. Whether the claim made by the Petitioner is time-barred: The Petitioner, Bsmart Tech Private Limited, filed a Company Petition under section 9 of the Insolvency & Bankruptcy Code, 2016, seeking to initiate Corporate Insolvency Resolution Process (CIRP) against Essel Utilities Distribution Company Limited, claiming an outstanding amount of ?17,54,240.10. The invoices in question pertain to the period from July 2015 to June 2016. The last payment made by the Corporate Debtor was on December 1, 2015. The Petitioner issued a demand notice under section 8 of IBC on December 5, 2018, which was delivered to the Corporate Debtor on December 12, 2018. Despite this, the Corporate Debtor failed to repay the outstanding dues. The Corporate Debtor argued that the claim is barred by limitation as the invoices pertain to the year 2015-2016, and the petition was filed belatedly on May 7, 2019. The Tribunal found that the last payment was made on December 1, 2015, and the email raising a dispute was dated February 4, 2016. Even if this email extended the limitation period, it would have ended by February 2019. Since the petition was filed on May 7, 2019, it was beyond the period of limitation. Therefore, the Tribunal held that the claim is time-barred. 2. Whether there was any pre-existing dispute raised by the Corporate Debtor: The Petitioner provided Bulk SMS services to the Corporate Debtor and raised invoices, which the Corporate Debtor failed to pay after December 2015. The Corporate Debtor, in its reply, argued that there were pre-existing disputes between the parties, particularly regarding the SMS count and the rate per SMS. The Corporate Debtor pointed out discrepancies in the SMS count mentioned in the invoices and the rate charged per SMS, which was higher than the agreed rate. The Corporate Debtor also mentioned that the invoices were not signed and certified as required by the work order. The Tribunal noted that the Corporate Debtor, in its email dated February 4, 2016, acknowledged receipt of the invoices but raised issues regarding the SMS count. The Tribunal found that this email indicated a plausible dispute between the parties regarding the SMS count. Citing the judgment in Mobilox Innovations Private Limited vs. Kirusa Software (P) Limited, the Tribunal held that the contents of the email amounted to a pre-existing dispute. Findings: The Tribunal concluded that: 1. The claim made by the Petitioner is time-barred as the petition was filed beyond the period of limitation. 2. There was a pre-existing dispute between the parties, as indicated by the email dated February 4, 2016. Order: The petition was dismissed with no costs. The Registry was directed to communicate the order to both parties immediately.
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