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TMI Blog2019 (10) TMI 820X X X X Extracts X X X X X X X X Extracts X X X X ..... y the partners of the firm M/s. Counfreedise (Annexure A-2 of the application). 2. The master data of the respondent (CIN_L33301DL1988PLC033434) is at annexure A-1 of the application and shows the registered address as 106-107, Amba Deep, 14, Kasturba Gandhi Marg, New Delhi-110001. Therefore, the jurisdiction lies with this Bench of the Tribunal. 3. In part IV of the application the amount of the debt is stated to be Rs. 12,73,235/- along with 18% interest from the due date till the date of payment. The applicant is stated to be a partnership firm engaged in the business of lawful procurement of lifestyle products viz. belts, wallets, sunglasses, fashionable jewelleries, watches etc. either directly from the manufacturing/marketing company or through their authorised distributors, and thereafter selling the same online. It is submitted that the applicant procured Timex Watches from the respondent from time to time for selling online and that the applicant and the respondent had an arrangement wherein it was agreed between the parties that the applicant shall be entitled to a discount of 10% + 4% on MRP of the products purchased directly from the respondent, against which credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04.10.2017 itself and present petition is a counter blast to legitimate civil suit for seeking injunction file by respondent against the applicant before the District Judge, Patiala House Court, New Delhi. It is alleged that the applicant has been caught red handed selling counterfeit Timex Watches on the e-commerce website www.amazon.in and in the aforesaid suit, vide order dated 22.02.2017, the applicant is restrained from dealing and selling Timex Watches/watch straps/ bands and parts thereof and the injunction is continuing in its full effect. It is further submitted that the applicant did not allow the local Commissioner to carry out the Court's order and impeded and frustrated execution of local commission and contempt of court proceedings instituted in this connection are pending adjudication before the Division Bench of the Hon'ble High Court of Delhi. It is stated that in the demand notice the applicant illegally tried to fasten liability upon the respondent purportedly claiming some arrangements between them and NVR Marketing. Two different sets of the ledger account are stated to be sent to the respondent regional office at Bangalore and Corporate office at Noida. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice under section 8 of the Code at the corporate and the branch office of the respondent and not at the registered office of the respondent as reflected on the website of MCA portal. Vide order dated 18.03.2019, it was held that the Demand notice under Section 8 of the Code can be served at the registered office/corporate office and the application was dismissed. 12. By CA 87/2018 (Diary No. 7398 dated 05.10.2018), the applicant sought to bring on record entry wise clarification of each and every transaction reflecting in the ledger filed by the applicant as annexure A-7 of the application being the ledger account maintained by the applicant with respect to transactions with the respondent for the period 01.04.2016 till 31.03.2017. Further, a tabular representation as to each transaction in the relevant quarter with page/transaction number of the same entries reflecting in the statement filed by the respondent giving rise to the credit notes of Rs. 8,73,929/- was also sought to be filed. It was stated that the instant application is to bring on record certain additional documents to provide clarity as to certain relevant transactions, the need of which arose on 27.08.2018 wherei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is pleaded that 'Operational Debt' has to be given a wider meaning. Reference was made to Page No. 13 of the reply to the application under Section 9 of the Code diary No. 641 dated 06.02.2018) and it was submitted that the respondent had accepted that there was annual tie up (ATU) scheme in which the respondent offered discount up to 12% on Unit cost price (UCP) or maximum retail price (MRP) and the respondent had also a cash discount scheme giving up to 2% as incentive in the form of credit note to the concerned purchaser. Reference was made to Page No. 148 of Diary No. 3863 dated 11.06.2018 filed by the respondent and to the averment made therein that the applicant kept on purchasing watches from opposite party/dealers distributors until February 2017 and therefore denial of discount on the ground that there were no purchases by the applicant after 30.05.2016 was not justified. It was pleaded that the purchases were made from the Corporate Debtor or the authorised agents and the payment was made only to the Corporate Debtor. 17. The learned senior counsel for the Corporate Debtor pleaded that the operational creditor must be the supplier of goods or services and if there was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operational creditor" means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred. 21) "operational debt" means a claim in respect of the provision of goods or services including employment or a debt in respect of the 1 [payment] of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority. 20. The first issue arising for determination therefore is whether the applicant is an Operational Creditor. Admittedly, the applicant is procuring Timex Watches from the respondent from time to time for selling online i.e. the provision of goods is being made by the respondent for which payment is to be made by the applicant. The applicant's claim is that there is outstanding amount due from the respondent as on 31.03.2017 of Rs. 12,73,235/- including amount of credit notes of Rs. 10,61,623/- and debit note raised by the applicant against the return of watches of Rs. 1,45,977/-. 21. The learned senior counsel for the respondent has relied on the order of the Hon'ble Company Appellate Tribunal, New Delhi in Roma Infrastructures India Pri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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