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TMI Blog2020 (9) TMI 799X X X X Extracts X X X X X X X X Extracts X X X X ..... And Ashutosh Chandra , Member (T) For the Appellant : Ramakrishnan For the Respondent : BaladyShekhar Shetty, PCS ORDER Rajeswara Rao Vittanala, Member (J) 1. C.P.(IB) No. 139/BB/2020 is filed by Mr. Murali Manohar Ravi(hereinafter referred to as 'Petitioner/Operational Creditor)U/s 9 of the IBC, 2016,R/w Rule 6 of the I B (Application to Adjudicating Authority) Rules, 2016, by inter alia seeking to initiate Corporate Insolvency Resolution Process (CIRP) in respect of Customer XPs Software Private Limited, on the ground that it has committed default for total amount of ₹ 13,26,340/-(Rupees Thirteen Lakh Twenty Six Thousand Three Hundred Forty Only) including default interest as of 31.01.2019. 2. Brief facts of the case, as mentioned in the Company Petition, are as follows: (1) Customer XPs Software Private Limited (Respondent/Corporate Debtor), is incorporated on 29.12.2006 with CIN: U72200KA2006PTC041328, having its Registered Office at #113/IB, 1st Floor, SRIT House, ITPL Main Road, Kundalahalli, Bengaluru - 560 037. (2) The Operational Creditor provides mentoring and consultancy services to the Corporate Debtor on regular basis. The t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreed to clear these dues in various conversations. Reported to Indian Income tax Authorities, expenses incurred by the Corporate Debtor towards due to Operational Creditor and deposited TDS amounts thereof. Thus, constituting a de facto acceptance of retainer ship of Operational Creditor and the payments due to him. (7) The Corporate Debtor has defaulted in paying the amount and also has not provided to Operational Creditor TDS certificate as required by law. On July 2018, Operational Creditor sent a demand letter to the Corporate Debtor's director via Email to which the Corporate Debtor did not respond. As on 31st January, 2019, ₹ 13,26,340/- including default interest amount due on 5 invoices the last of which was on 07.05.2017. Further, the Corporate Debtor vide WhatsApp Messages dated 31.05.2017 and 16.10.2017 has acknowledged the liability. (8) The Operational Debtor having no other option issued a Demand Notice as prescribed under the Insolvency and Bankruptcy Code. Though the Corporate Debtor received the notice on 14.01.2019, failed to respond within the mandatory period of 10 days as stipulated under the Code. Further, pursuant to receipt of the notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2018-19 is ₹ 41.18 crores. By initiating CIRP against the Company would have serious devastating effect on its operations, defeating very purposes of IBC, 2016. 4. Heard Mr. S.Rama Krishnan, learned Counsel for the Petitioner. Mr. Balady Shekhar Shetty, learned PCS for the Respondent through Video Conference. We have carefully perused the pleadings of both the parties, and the extant provisions of the Code, the Rules made thereunder, and the law on the issue. 5. Shri. S. Ramakrishnan, learned Counsel for the Petitioner, while reiterating the averments made in the Petition, as briefly stated supra, has also filed his written submissions dated 01.07.2020 by inter alia contending as follows: (1) The Corporate Debtor clearly admitted to the debt owed to the Petitioner. There is also a clear admission of having TDS deduction being submitted to the Income Tax Department and the same has been done without disbursal of payments which is clear violation of law. Further the corporate Debtor failed to produce the emails. Despite of emails the Corporate Debtor did not make any payments of the debt which it had duly acknowledged. (2) There is a proof of the acknowledgemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 10.04.2017 due date 20.04.2017, Invoice No. 5 dated 07.05.2017 due date 07.05.2017. And there is no element of interest mentioned in the invoices or any agreement in this regard and however, the Petitioner on his own accord has calculated interest. The payment date for the first Invoice was on 28th August 2016, however, the Petitioner without taking any legal course of action against the Respondent, has ultimately issued the demand notice only on 21.01.2019. However, the Petitioner without availing opportunity given by the Respondent, to substantiate his case so as to settle his case, has filed the instant Petition. Out of total claim of ₹ 13, 26,340/-, Principle amount is ₹ 10,12,930/- and late payment interest due is ₹ 3,13,410/- calculated from the date of each invoice till 31.01.2019, at 15% compound annual interest. 8. It is relevant to refer the email dated 21.03.2019 sent by the Respondent to the Petitioner, which is extracted below for ready reference: Hi Murli, This is the 3rd time I am communicating to you on this subject over time, hopefully I receive a response this time. We had an engagement in good faith with you. I will addres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however the billing was still done. 4. We will be able to release the payment, once we get these supporting documents B) Comment on the engagement itself We would like to mention that we are deeply disappointed with the lack of any constructive outcomes. We had very high professional expectations from you. On analysis we see that, while there was not letup on the payment demand for the retainer ship, the other of end of the bargain, the need to deliver a month on month outcome, was not complied with. We have learned our lessons. We feel that we have not received value for the money paid. Please send the compliance details mentioned above so that we can release the payments to you. The contents of above communication clearly established that the instant Petition is filed with an intention to recover the disputed dues and without substantiating the claim of Petitioner first before the Respondent. In terms of provisions of Code, in the first instance, the debt in question should be established and it should legally recoverable, and thereafter default should be committed by the Corporate Debtor. However, the Petitioner failed to fulfil even the pre-requis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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