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TMI Blog2020 (9) TMI 601X X X X Extracts X X X X X X X X Extracts X X X X ..... Marketing Pvt. Ltd. M/s. Park Network Pvt. Ltd. is Respondent No.1 in the appeal and M/s. PP Telecell Marketing Pvt. Ltd., the Corporate Debtor (which is now under CIRP) is Respondent No.2 through Mr. Ajay Goyal, Interim Resolution Professional. 2. The brief facts of the case are that M/s. PP Telecell Marketing Pvt. Ltd. having CIN No. U64202DL2002PTC117795 is in the business of trading and was the authorized distributor of M/s. Syntech (HK) Technology Limited, manufacturer of mobile phone with the brand Gionee in India. In the year 2012, M/s. PP Telecell Marketing Pvt. Ltd. entered into a International Distributor Agreement with Syntech (HK) Technology Ltd. for distribution of Gionee mobile phones and accessories for three years from 2012. The agreement was renewed in 2015 after expiry of the first agreement. M/s. Park Network Pvt. Ltd. having CIN No. U74899DL1995PTC65654 was appointed as sub-distributor as per Sub-Distribution Agreement (here in after called SDA) dated 15.4.2015 on the terms and conditions contained therein by the Corporate Debtor M/s. PP Telecell Marketing Pvt. Ltd. for sale of mobile phones and accessories and related services. 3. Respondent No.1 used to buy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. (H) Any liability arising out of non service ability, delayed or unsatisfactory serviceability or performance of the products will be borne by the Distributor." 8. The Operational Creditor was receiving all the benefits in relation to the products covered in the Sub Distribution Agreement from the Corporate Debtor M/s. PP Telecell Marketing Pvt. Ltd. These benefits were originally given by M/s. Syntech (HK) Technology Limited from time to time. 9. Consequent to the closing of Indian operations, M/s. Syntech (HK) Technology Limited were in the process of making full and final settlement with its partners. E-mail message dated 5.1.2019 gives details of claims under various schemes, as received by the Operational Creditor and proposal to settlement all claims at 50% by way of billing of Gionee Brand mobile handsets. In brief, this e-mail provides the following break-up of claims approved and those pending approval:- 1. Total pending claim amount:- Rs. 13,49,770.00 2. Previous pending claim amount in Ledger:- Rs. 6,53,102.00 Total Amount Payable by PP Telecell Marketing Pvt. Ltd. :- Rs. 20,02,872.00 10. A settlement offer was made by M/s. Syntech (HK) Technology Li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebt must be unequivocal, unconditional and clear, which is not so in the present case and the claim of operational debt on account of sales return is not tenable. The appellant has also referred to the judgment of Apex Court in Mobilox Innovations (P) Ltd. V. Kirusa Software (P) Ltd. (2018) 1 SCC 353 to claim that the Adjudicating Authority has to reject the application, if a dispute truly exists in fact and is not spurious, hypothetical or illusory. 13. In his arguments, the Learned Counsel for Operational Creditor (Respondent No. 1) has stated that the legal ground raised by the Appellant in the present appeal is whether Respondent 1 is an Operational Creditor or not? He has alluded to the definition of debt and creditor in Section 3 of IBC, 2016, which is as follows:- "(10) 'creditor' means any person to whom a debt is owed and includes a financial creditor, an operational creditor, a secured creditor, an unsecured creditor and a decree-holder; (11) 'debt' means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt. He has also alluded to Section 5 of the IBC, 2016 which defines operational credito ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt owned by the Respondent 2 to respondent 1 was in regard to the services rendered as per the sub-distribution agreement and benefits etc. and are in the nature of operational debt. 16. We have perused the appeal memo, replies of the Respondents and rejoinder thereof as well as written submissions filed on behalf of the Appellant and Respondent No. 1(operational Creditor). We have also considered oral arguments put forth by both sides and the case laws cited during the arguments and in written submissions. 17. It is a fact that sub-distribution agreement was signed between the Operational Creditor and Corporate Debtor on 15.4.2015 for supply and distribution of mobile phones and other accessories. The clause 5 of the subdistribution agreement mentions the obligations towards sub-distributor i.e. Operational Creditor as follows:- "G. The company/distributor will introduce schemes from time to time to boost sales of the products. And Clause 'J' of the Agreement says J. The distributor shall not be responsible for any claim whatsoever whether as per company policy or other written commitment by levelled not lower then a branch manager, if such claims are not lodged with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns cited above that 'operational debt' means claim in respect of provision of goods and services. In the present case, the goods and services are being provided by the distributor to the sub distributor as per clauses of the sub-distribution agreement. Insofar as the purchase of mobile handsets is concerned, clause 6(c) of the SDA mentions that the sub distributor shall place orders in writing for supply of products. Products bought against such orders will be delivered by the Distributor or lifted by the Sub Distributor within 24 hours of billing and will in no case be stored at distributor's premises beyond this deadline. Therefore, as per clause 4(a) and clause 6(c) of the Sub Distribution Agreement, the Distributor is the seller of mobile handsets and accessories and the Sub Distributor is the purchaser of the products from the Distributor. Clause 4(a) of the Sub Distribution Agreement also makes it clear that Distributor shall bear the cost of price drop for stocks lying with Sub Distributor and its trade partners. This amount is corroborated by the ledger account attached with e-mail sent by the Corporate Debtor on 5.1.2019, according to which the amount due to the Operationa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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