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TMI Blog2019 (11) TMI 1381X X X X Extracts X X X X X X X X Extracts X X X X ..... e. There is nothing on record to show that any dispute was raised before raising tax invoice. The Operational Creditor has established that Corporate Debtor committed default of Operational Debt and as such application is liable to be admitted. Petition admitted - moratorium declared. - CP (IB) No. 419/9/HDB/2019 - - - Dated:- 20-11-2019 - Hon'ble Shri Ratakonda Murali, Member (Judicial) AND Hon'ble Shri Narender Kumar Bhola, Member (Technical) For the Petitioner : Mr. Ch. Siddhartha Sarma, Advocate For the Respondent: Mr. Chetluru Sreenivas, Mr. Kiran Tirunahari, Mr. N.B.Benarjee, Mr. V. Krishna Sai, Advocates ORDER Per: Hon'ble Shri Ratakonda Murali, Member (Judicial) 1. The Present Petition is filed by Concept Public Relations India Limited [CN], which is the Operational Creditor in this case stating that M/S. RDP Workstations Private Limited ('RDP'), the Corporate Debtor had defaulted the total amount of ₹ 7,02,400/- (Rupees Seven Lakhs Two Thousand Four Hundred only) along with interest @ 24% p.a. Hence this petition is filed under Section 9 of Insolvency and Bankruptcy Code, 2016, r/ w Rule 6 of Insolvency Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or issued a Demand Notice on 05.03.2019 to the Corporate Debtor under Section 8 of the Insolvency and Bankruptcy Code, 2016. iii. It is averred that Demand Notice sent to the registered office address of the Corporate Debtor did not get delivered and tracking details are showing the remarks as Receiver shifted from given address . The Operational Creditor had again served the demand notice on 30.03.2019 through e-mail. At the request of Mr. Teja from Corporate Debtor, again copy of the Demand Notice was sent through e-mail on 03.04.2019. iv. It is also averred that the Corporate Debtor sent a Response Letter dated 02.05.2019 after the expiry of 10 days statutory period, which is an afterthought and with the motive to avoid its liability. The petition is in order and it is liable to be admitted. 3. Counter filed by the Corporate Debtor in brief are as follows: i. It is averred that the particulars of operation debt are incorrect and the Contract dated 01.08.2017 has no mention about the retainer fee. It is also averred that the Operational Creditor has failed to explain as to how the alleged total debt amount of ₹ 7,02,400/- is arrived at. ii. It is averred tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Code. The contention of Applicant that there is an Order passed by the Hon 'ble National Company Law Appellate Tribunal in the case between Ahluwalia Contracts (India) Limited vs. Raheja Developers Limited, dated 23.07.2019 wherein it was held that the existence of dispute must be pre-existing i.e., it must exist before the receipt of the demand notice or invoice. iv It is averred that the alleged disputes raised are frivolous and complete devoid of merits and have been raised with the sole intent of misleading this Tribunal. v. It is averred that the invoices raised by the Operational Creditor towards the said retainer fee of ₹ 85,OOO/- plus GST has been paid by the Corporate Debtor for the initial months which is provided in the ledger statement also. Thus, there exists no ground on which the Corporate Debtor can now dispute the retainer fee. vi. It is averred that the retainer fee was not based on the deliverables. vii. It is further averred that all the alleged disputes of Corporate Debtor are completely an afterthought, baseless and frivolous and ought to be rejected in its entirety. 5. We have heard the Counsel for Operational Creditor and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Such a dispute cannot be relied. The Hon 'ble NCLAT also held the same view in the matter of AhZuwaZia Contracts (India) Limited vs. Raheja DeveZopers Limited and Learned Counsel for Operational Creditor also relied on the decision of the Apex Court in the matter of MobiZox Innovations Pvt. Ltd. vs. Kirusa Software (P) Limited (2017) 1 SCC Online SC 353.The alleged dispute is frivolous and is devoid of merits. 8. The Learned Counsel further contended Annexure-I to the Contract mentions that deliberations will be press coverage to the value of retainer ship which the Operational Creditor has provided. The Learned Counsel has contended the contract is that of retainer i.e., appointment of a Professional Consultant on a monthly retention cost. It is not a deliverable based document wherein the agency would be paid on performance parameters/matrix or as per a menu card tariff. The retainer fee between the parties is fixed whether deliverables is one or seven or zero. Thus, retainer fee of ₹ 85,OOO/- is fixed and is not based on deliverables achieved in any particular month. Thus, Learned Counsel contended the contention of Corporate Debtor that payment of retainer fee wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount payable for the services rendered by Operational Creditor to the Corporate Debtor is at ₹ 85,OOO/- + GST per month. 12. The Operational Creditor further filed the copy of Invoices for the defaulting months, which is from April, 2018 to 1 st October, 2018. They are shown as Exhibit - 'E' (Colly.) at page Nos.3238. The invoices go to show that public relations fee for every month is ₹ 85,OOO/- + GST @ 18% which is at ₹ 15,300/which comes together at Rs. The Operational Creditor raised invoices from April, 2018 to October, 2018. It is not the case of the Corporate Debtor that it has paid the amount covered by the invoices. 13. The Petitioner / Operational Creditor further filed Exhibit - 'F' which is copy of Demand Notice dated 05.03.2019 issued to the Corporate Debtor. It is shown at page nos. 39-45 of paper booklet. 14. The Corporate Debtor gave reply shown as Exhibit-'H', which is at page no.68-70 of the paper booklet. For the first time, Corporate Debtor raised dispute through this reply which is beyond 10 days from the date of service of Demand Notice. The Corporate Debtor raised dispute for the first time that there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of the Corporate Debtor also shows that amount payable to the Operational Creditor is on monthly basis at Rs. The e-mails relied by the Corporate Debtor do not show that there was any preexisting dispute. In fact, Corporate Debtor made payments to the Operational Creditor in respect of certain invoices and if there is really deficiencies of services then how Corporate Debtor honoured some of the invoices. In other words, Corporate Debtor made payment to the Operational Creditor in respect of certain invoices. In fact, there was no letter to the Operational Creditor raising a dispute of deficiency of services. Even reply is given by the Corporate Debtor to the Demand Notice belatedly after expiry of 10 days. The Corporate Debtor raised dispute for the first time in reply notice as if there was deficiency of services in the reply. It cannot be held that there was a pre-existing dispute. In this connection, Counsel for Operational Creditor relied on the decision of Hon'ble NCLAT in the matter AhZuwaZia Contracts (India) Limited vs. Raheja Developers Limited. The prior dispute must be pre-existing i.e. it must exist before receipt of demand notice or tax invoice. There is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... security interest created by the Corporate Debtor in respect of its property including any action under Securitization and Reconstruction of Financial Assets and Enforcement of Security interest Act, 2002 (54 of 2002); the recovery of any property by an owner or lessor where such property is occupied by or in possession of the corporate Debtor; ii. That the supply of essential goods or services to the Corporate Debtor, if continuing, shall not be terminated or suspended or interrupted during moratorium period. iii. That the provisions of sub-section (1) of Section 14 shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. iv. That the order of moratorium shall have effect from 20.11.2019 till the completion of the Corporate Insolvency Resolution Process or until this Bench approves the Resolution Plan under Sub-Section (1) of Section 31 or passes an order for liquidation of Corporate Debtor under Section 33, whichever is earlier. v. The Petitioner is directed to pay a sum of Rupees (One Lakh Only) to the Interim Resolution Professional to meet out the expenses to perform the functions assigne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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