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TMI Blog2019 (11) TMI 1527X X X X Extracts X X X X X X X X Extracts X X X X ..... sing services vide a telephonic contract. In consideration of the transaction processing services provide by the Corporate Debtor, the Petitioner agreed to pay fees and merchant discount rate (MDR) in respect of the transaction process through a POS machine and thus bound by the terms and conditions of the agreement for usage of the said POS machine. 3. As per the terms and conditions of the agreement, the Corporate Debtor would send statement of account to the Petitioner, wherein after deducting the charges payable for the services availed by the Petitioner, the Corporate Debtor will pay the amount collected through the swipe machines to the Petitioner. Accordingly, the Petitioner kept on swiping the swipe machine given by the Corporate Debtor and the Petitioner has been getting back the amount from the Corporate Debtor after deduction of fees levied by the Corporate Debtor. 4. The Petitioner submits that the Corporate Debtor was not deducting Merchant Discount Rate (MDR) from the amount collected through swipe transactions from the amount collected through swipe transactions from the beginning till 23.09.2018 but all of sudden on 26.09.2018, the Corporate Debtor deducted an amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... saction information nor any payment by or any act of omission by Mswipe (other than an express written acknowledgement or waiver thereof by Mswipe) shall constitute or be deemed to constitute any acknowledgement or waiver of compliance by the merchant with any of the warranties specified in this application." (d) It is pertinent to state and clarify that by virtue of the terms of the Agreement and pursuant to the understanding hereinabove that your client has authorized our client to deduct such MDR due and payable, from the transaction amounts to be remitted to your client, without any further notification or intimation. Our client further states that, due to a technical error in its system, our client was unable to recover the entire amounts of MDR due to it from your client for a period between January 2018 to September 2018. Upon discovery of the glitch in the system, our client had deducted an amount of Rs. 34,66,549/- (Rupees Thirty-Four Lakhs Sixty-Six Thousand Five Hundred and Forty-Nine only) ("Deducted Amount") from the transaction amounts remitted to your client and demanded vide its emails dated October 11,2019 an aggregate amount of Rs. 18,79,029/- (Rupees Eighteen L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and such set-off and/or adjustments shall be final and binding on the Merchant." c. By virtue of the terms of the agreement stated supra, the Petitioner has authorized the Corporate Debtor to deduct such MDR due and payable from the transaction amounts to be remitted to the Petitioner in due course without any prior intimation or notification. d. Due to a technical error in its system, the Corporate Debtor had not recovered the entire amounts of MDR due from the Petitioner for a period between January 2018 to September 2018. Upon discovery of the glitch in the system, the Corporate Debtor deducted an amount of Rs. 34,66,549/- (Rupees Thirty-Four Lakhs Sixty-Six Thousand Five Hundred and Forty-Nine Only) ("Deducted amount") from the transaction amounts remitted to the Petitioner. Further the Corporate Debtor is yet to recover a sum of Rs. 18,79,029/- from the Petitioner. e. The MDR is applicable on all transactions made through the Corporate Debtor's POS machines, all transactions were managed and facilitated in accordance with Corporate Debtor's standard terms and conditions to which all merchants agreed to be bound by including the Petitioner, therefore the amount d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cally stated that the Corporate Debtor is entitled to charge MDR charges. 10. The counsel for the Petitioner further submitted that the Corporate Debtor has neither provided the copy of the agreement nor the Petitioner has signed the agreement. To counter this submission the counsel for the Corporate Debtor submits that the terms and conditions of the agreement are executed through an telephonic Contract and in fact only when the terms and conditions are agreed by the Petitioner the next step will happen and accordingly the parties entered into the terms and started doing business, hence the submissions of the Petitioner are false and misleading. 11. The Claim made by the Petitioner in the present application is not a 'Claim' under the Code since there is no right to payment in respect of the amount which is the MDR deducted by the Corporate Debtor in the present case. Therefore, such claim is not debt in terms of the Code since there is no liability or obligation on part of the Corporate Debtor to pay such amount to the Petitioner. Since, there is no debt due towards the Petitioner by the Corporate Debtor, there is no question of default on the part of the Corporate Debt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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