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TMI Blog2020 (10) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... right to payment - in the case in hand, the applicant filed an application under Section 9 of the IBC which relates to the operational debt which is defined under Section 5(21) of the IBC and it is a claim in respect of provision of goods or services including employment or a debt in respect of the payment of dues arising under any law for the time being enforce. Therefore, only those claim in respect of which the provisions of goods or services including employment are provided comes under the definition of operational debt or if it is a debt in respect of the payment of dues arising under any law for the time being enforce and payable to the Central Government, any State Government or any Local Authority. In view of Section 5(21) the amount which the applicant claim does not come under the definition of operational debt and since the amount claimed by the applicant does not come under the definition of operational debt. Therefore, the applicant cannot be treated as Operational Creditor under Section 5(20) of the IBC because the Operational Creditor means a person to whom an operational debt is owed and include any person to whom such debt has been legally assigned or transferr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to and marked as Annexure-P3. iv. The Applicant/Operational Creditor has engaged for courier service of the Respondent/Corporate Debtor M/s. Madhatters Voyage Private Limited vide the agreement dated 06.03.2018 with the service description as follows:- Netmeds shall give the packed and properly sealed shipments, to be delivered to end customers who place their order online. During the Term of this Agreement, the service provider shall provide the Services more particularly described hereto under Clause 3. v. The Clause 3 of the above mentioned agreement reads as follows; i) Service Provider shall deliver all the shipments to end customer (hereinafter referred to as Shipment/s ) as per Netmeds's instructions informed from time to time along with each Shipment handed over by Netmeds to the Service Provider. ii) The Service Provider shall be responsible to return the undelivered Shipments to Netmeds in the same conditions as provided to the Service Provider for delivery. In the event Service Provider fails to deliver the Shipments in the same condition then the Service Provided shall be liable to pay Netmeds on actual MRP of shipment/s. iii) Servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporate Debtor has not paid the amount of ₹ 50,19,042/-, the amount due to this Applicant/Operational Creditor and forcing this Applicant/Operational Creditor to take legal recourse by sending a demand notice (Form-3) dated 06.03.2019 under IBC, 2016 demanding the amount of ₹ 50,19,042/-. True copy of the demand notice dated 06.03.2019 sent by the Applicant/Operational Creditor is being filed as Annexure-P6. viii. When the respondent/Corporate Debtor had not paid the amount of ₹ 50,90,042 only, then the Operational Creditor sent a demand notice dated 06.03.2019 and the respondent/Corporate Debtor vide its reply dated 12.03.2019 made a false allegation to their legal discharge of the outstanding due. Further, the contention of the Corporate Debtor, the applicant does not come under the purview of the Operational Creditor as defined under Section 5(20) of the IBC and the amount claimed by the applicant is not the operational debt under Section 5(21) of the IBC. 3. In response to the notice, the respondent/Corporate Debtor appeared and filed the reply and contended as follows: i. That the applicant is not the Operational Creditor and amount claimed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he parties on the issue of reconciliation and proof of payments already remitted by the Corporate Debtor in respect of COD deliveries. A complete copy of Corporate Debtor's Reply dated 16.03.2019 to the Demand Notice dated 06.03.2019 is annexed herewith and marked as ANNEXURE-R2. vi. It is submitted that while the Corporate Debtor had been performing its obligations under the Agreement, certain disputes had arisen between the parties in relation to reconciliation of accounts, particularly in respect of cash collected against COD deliveries. In fact, such disputes had arisen prior to the issuance of Demand Notice. Accordingly, the Corporate Debtor had duly communicated existence of such disputes to the Petitioner, in its Reply to the Demand Notice. vii. As detailed in the Reply the parties are not ad idem on the amount payable on account of COD deliveries effected under the Agreement. Admittedly, there is a need for reconciliation of accounts and no amount has been confirmed by the Corporate Debtor as payable to the Petitioner, as alleged or at all. The necessity for reconciliation has been adequately detailed by the Corporate Debtor at Paragraph 6 of the Reply to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ines. ii. returning the COD amount is a liability and obligation on the part of Respondent/Corporate Debtor and the claim by Applicant/Operational Creditor is with regard to the said obligation. Thus, the amount payable by the Respondent/Corporate Debtor falls squarely within the definition of debt and the contention made by the Respondent/Corporate Debtor in this regard is legally not binding and is vehemently denied. iii. The Claim made by Applicant/Operational Creditor against Respondent/Corporate Debtor is based on their services rendered and as a part of their services they ought to have pay the cash collections of COD to Applicant/Operational Creditor which was not done by them. Thus, the claim made by Applicant/Operational Creditor is fully within the scope of Operational Debt and that Applicant/Operational Creditor is the operational creditor with regard to the amount payable by Respondent/Corporate Debtor to Applicant/Operational Creditor. iv. The debt became due on April, 2018 when the outstanding amount was confirmed by the Corporate Debtor. The aforesaid sum is payable by the corporate debtor without any excuse along with an interest at the rate of 24% p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he CoD amount is liability and obligation on the part of the respondent/Corporate Debtor and claimed by applicant/Operational Creditor is with regard to the said obligations. Thus, the amount payable by the respondent/Corporate Debtor fall within the definition of debt. He further submitted that the Operational Creditor has repeatedly shared the working for the CoD pending and even respondent/Corporate Debtor has communicated through e-mail dated 26.11.2018, that they are reconciling the CoD pending data from their hand but the applicant/Operational Creditor have not received any reconciliation or confirmations from their end. He further submitted vide e-mail dated 06.03.2019, the Corporate Debtor admitted and agreed to pay sum of ₹ 10 to 12 lakhs at earliest before 15.03.2019 and the remaining before the end of March 2019, but no payment has been made, which shows there is a default in payment of the outstanding due. 7. On the other hand Ld. Counsel appearing for the Corporate Debtor, in course of his argument submitted that the petitioner is not the Operational Creditor as defined under Section 5(20) and the debt is not operational debt as defined under Section 5(21). He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right is reduced to judgment, fixed, matured, unmatured, disputed, undisputed, secured or unsecured; 3. (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; 9. Mere plain reading of the aforesaid provision shows that operational debt means a claim, in respect of the provision of goods or services including employment or a debt in respect of the payment of dues arising under any law for the time being enforce and payable to the Central Government, any State Government or any Local Authority and debt as a defined under Section 3(11) means a liability or obligation in respect of a claim which is due from any person and includes a financial debt or the operational debt and the claim is defined under Section 3(6) which shows that it means a right to payment whether or not such right is reduced to judgment fix, disputed, undisputed, legal, equitable, secured or unsecured or right to remedy for breach of contract under any law for the time being enforce, If such breach give rise to right to payment. If we shall read all these definition together then it can be said that a debt is a l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reement shall be valid for One (1) year starting from 1st March, 2018, ( Term ) Netmeds at its sole discretion reserves the right to extend the period of this Agreement for a further period of One year by serving a letter in writing on the Service Provider on the same terms and conditions of this Agreement. 3. Obligation of the Service Provider: i. Service Provider shall deliver all the shipments to end customer (hereinafter referred to as Shipment/s ) as per Netmeds's instructions informed from time to time along with each Shipment handed over by Netmeds to the Service Provider. ii. The Service Provider shall be responsible to return the undelivered Shipments to Netmeds in the same condition as provided to the Service Provider for delivery. In the even Service Provider fails to deliver the Shipments in the same condition then the Service Provider shall be liable to pay Netmeds on actual MRP of shipment/ s. iii. Service Provider shall provide services for all the Shipment in the following types for Netmeds like Shipment Delivery, Prepaid, Cash on Delivery (COD), Pick-up and Exchange as per Netmeds instructions. iv. Service Provider shall settle cash collect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulatory bodies by the Service Provider for any action arising out of this Agreement. iv. Rate revision is subject to Service Provider proposal and Netmeds acceptance as detailed in Annexure 1. Rates revision could be subject to mutual acceptance. Any sudden changes in rates shall invite for penalties. 11. If we shall consider the terms and conditions of the courier service agreement along with the definitions, which we have referred in the aforementioned para, then we are of the considered view that on the basis of this courier service agreement, it is the respondent who renders their service and it was not the applicant who renders the service. Therefore, in view of Section 5(21) the amount which the applicant claim does not come under the definition of operational debt and since the amount claimed by the applicant does not come under the definition of operational debt. Therefore, the applicant cannot be treated as Operational Creditor under Section 5(20) of the IBC because the Operational Creditor means a person to whom an operational debt is owed and include any person to whom such debt has been legally assigned or transferred. 12. For the reason discussed above, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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