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TMI Blog2020 (1) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... erational creditor in respect of services rendered for the corporate debtor in filing application under section 10 of the I B Code through its associate, Shri Satishkumar, Practising Company Secretary. The amount payable to the operational creditor falls under the definition of 'operational debt' as it refers to the payment for the services rendered to the corporate debtor. Secondly, demand notice was issued and there is compliance of provisions of section 9 of the I B Code. Thus, there is debt and default of operational debt. As such the petition is liable to be admitted. The Adjudicating Authority admits this Petition under Section 9 of IBC, 2016, declaring moratorium for the purposes referred to in Section 14 of the Code - petition admitted - moratorium declared. - CP (IB) No.119/9/HDB/2019 - - - Dated:- 6-1-2020 - Ratakonda Murali, Judicial Member And Narender Kumar Bhola, Technical Member Ms. Shipa for the Petitioner. Varun. J for the Respondent. ORDER 1. The present Petition is filed by Adroit Financial Services (hereinafter referred as Petitioner/ Operational Creditor) against M/S. Yadadri Life Sciences Priv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perational creditor was requested by the corporate debtor to withdraw the application U/s.10 of the I B Code, 2016 as the Sole Financial creditor/SBI had offered another opportunity for OTS. It is averred that as per request of the corporate debtor, operational creditor filed withdrawal memo and received orders on 6th September, 2018. g. It is averred that an invoice was raised to claim for ₹ 12,98,000/- (including 18% CST) for professional services on 11th September, 2018. As per the invoices raised the corporate debtor required to pay the amount against the invoice within 30/60 days from the date of receipt of invoice. h. It is averred that though the corporate debtor received services failed to pay the invoice amount and thus Form-3 was sent by speed post to the registered office, operations unit, Directors address of the company on January, 2019. i. Thus the operational creditor filed the petition Under Section 9 of the Code stating that there is an existence of debt, and there is default. Operational creditor requested the Tribunal to initiate CIRP against corporate debtor. 3. The averments made in Counter/ Reply are as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner and also demanded the refund of balance amount of ₹ 1,40,000/-. i. It is averred that petitioner raised back dated invoice and claiming it as an operational debt, with sole purpose of harassing the respondent by abusing the process of law. j. It is averred that the petitioner finally admitted its inability to honour its commitment in terms of the agreement dated March 27,2018 and after repeated requests petitioner finally agreed to return the amount of ₹ 12 lacs to the respondent and in the process returned a sum of ₹ 10,60,000/- through bank to the respondent bank account and the petitioner still owes a sum of ₹ 1,40,000/- to the respondent for which the respondent is initiating recovery proceedings separately. Therefore in the absence of the operational debt as claimed by the petitioner, the respondent prays the Tribunal to dismiss the application. 4. The Petitioner has filed Rejoinder against the Counter of the Respondent reiterating the averments made in the Petition and denied all the submissions made by the Respondent in the counter. It is stated in the Rejoinder that: a. Operational creditor deni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut it was the company's decision to withdraw the application to avail the OTS offered by the SBI. The invoice was raised only to meet the obligation for services offered to the Respondent in appearing at least Il hearings. f. It is averred that the petitioner never asked for the return of the advances made but was asked to support the 5% payment due by the respondent to the SBI ON 29TH September 2018 for ₹ 22 lacs, and availed a gold loan and private loan to meet the obligation of paying the SBI where in the petitioners share obligation is ₹ 10.60 lacs. g. It is averred that GST will be paid and returns will be submitted once payment is released and the GST is not a contention as the invoice is enough to prove that the services were offered as per the agreement and there is a liability of ₹ 11 lacs exclusive of GST. h. It is averred that the Exhibit D is false and the cash transactions were never happened. The respondent averred that the petitioner is raising back dated invoice which is false and was not honouring the obligations. There are many criminal and civil matters pending more than 15 courts. i. It is averred tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... greed for rendering services to the corporate debtor. An invoice was raised for the amount and demand notice was also sent to the corporate debtor. Since no payment from the side of the corporate debtor, an application is filed under section 9 of the I B Code against the corporate debtor to initiate Corporate Insolvency Resolution Process (CIRP). The learned counsel contended that the corporate debtor is raising a dispute for the first time, which is totally unconnected to the agreement dated 02.05.2018. 7. The learned counsel contended that the corporate debtor did not whisper anything in respect of agreement dated 02.05.2018, which was entered into with the operational creditor for extending NCLT services. The learned counsel contended that the corporate debtor is contending as if there is a dispute in respect of an agreement dated 27.03.2018, which was entered in connection with rendering financial services, etc. The obligations arising under the said contract are totally different than the obligation arising under the agreement dated 02.05.2018. Thus, there is no prior dispute as far as the obligation to be discharged by the corporate debtor in respect of the agreemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... htly contended by the learned counsel for the operational creditor it is not the case of the corporate debtor that it had paid the fee agreed for the services rendered by the operational creditor to the corporate debtor by filing application under section 10 of the Code. 11. Thus, there is no dispute with regard to filing of application on behalf of the corporate debtor under section 10 of the I B Code. Admittedly, it is not the case of the corporate debtor that it had paid the agreed fee to the operational creditor. However, the corporate debtor is contending that certain obligations to be discharged in respect of agreement dated 27.03.2018. Said obligations, whatever they may be, have no connection to the obligation discharged under the agreement dated 02.05.2018. The alleged dispute, if any, in respect of agreement dated 27.03.2018 is in no way connected to the services rendered for the corporate debtor under agreement dated 02.05.2018. So, it cannot be said that there is a prior dispute. Secondly, no payment is made to the operational creditor in respect of services rendered for the corporate debtor in filing application under section 10 of the I B Code through its as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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