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TMI Blog2019 (11) TMI 1536X X X X Extracts X X X X X X X X Extracts X X X X ..... In the case on hand the contentions raised by the Corporate Debtor are neither spurious nor hypothetical nor illusory and in fact there is a dispute as to existence of the debt payable by the Corporate Debtor. The petition is dismissed with liberty to the Petitioner to proceed accordance with law. X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration of the transaction processing services by our client, your client had agreed to pay fees and merchant discount rate ("MDR") with respect to each transaction processed through the POS machine in accordance with the terms of the Agreement. (c) Our client states that inter alia your client has agreed to certain provisions as are provided in the agreement which are reproduced herein below: "In consideration of the transaction processing services the merchant agrees to pay to Mswipe, the Merchant Discount Rate as mentioned in the application and any further charges as detailed in the application and or these terms and conditions, which shall be deducted by Mswipe from the amounts payable to the merchant in respect of a transaction amount." "Mswipe will be entitled at any time to set-off and adjust outstanding of the merchant, against all payments due to the merchant and such set-off and/or adjustments shall be final and binding on the merchant." "Neither the receipt by Mswipe of any transaction information nor any payment by or any act of omission by Mswipe (other than an express written acknowledgement or waiver thereof by Mswipe) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : "16.1 In consideration of the transaction processing services the Merchant agrees to pay to Mswipe, the Merchant Discount Rate as mentioned in the Application and any further charges as detailed in the Application and or these terms and conditions, which shall be deducted by Mswipe from the amounts payable to the Merchant in respect of a transaction amount. 17.8 Neither the receipt by Mswipe of any transaction information nor any payment by or any act of omission by Mswipe (other than an express written acknowledgment or waiver there if by Mswipe) shall constitute or be deemed to constitute any acknowledgment or waiver of compliance by the Merchant with any of the warranties specified in this Application. 18.1 Mswipe will be entitled, at any time to set-off and adjust outstanding of the Merchant, against all payments due to the Merchant 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further submitted that, even otherwise, the Corporate Debtor could not have deducted MDR after two days of settlement, in view of the fact that the Corporate Debtor imposed a disclaimer on the Petitioner while sending the statement of accounts that the Petitioner has to inform the discrepancy in the accounts within two days of receipt of statement sent by the Corporate Debtor to the Petitioner. Hence the two days time limit will ipso facto apply to the Corporate Debtor also and the deduction made herein after a long period of settlement is not in order and the Petitioner is entitled to get back the amount wrongly deducted from the receivable by the Petitioner. 9. The above submissions of the counsel for the Petitioner is diagonally opposite to the terms and conditions of the agreement wherein it is specifically 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 thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prepaid card were also include due to which MDR was not leveled on Prepaid Card transactions from January to September 18. We would like to inform you that we have recovered the outstanding MDR charges including GST which was not levied for those transactions previously. In case of any query on this matter please drop your query at [email protected] for clarification." The above emails which are prior to the issue of demand notice clearly shows that there is a dispute with regard to the amount claimed and the same is covered under Section 5(6) of the code which reads as below: "5(6) "dispute" includes a suit or arbitration proceedings relating to-- (a) the existence of the amount of debt; (b) the quality of goods or service; or (c) the breach of a representation or warranty;" 13. In the light of the above narration and in view of the fact that the Corporate Debtor had deducted MDR charges which the Petitioner is liable to pay as per the agreement, there is no debt payable by the Corporate Debtor and the same being a dispute covered under Section 5(6)(a) of the code, this bench is of the view that there is a plausible dispute raised by the Corporat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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