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TMI Blog2022 (5) TMI 1268X X X X Extracts X X X X X X X X Extracts X X X X ..... bility is more than the threshold limit as prescribed U/s. 4 of IBC, 2016. As far as first aspect is concerned, there have been a number of communications between the operational creditor and corporate debtor which make it apparent that there are certain strong differences between the two. Thus, it becomes imperative to find out what is the undisputed amount of liability. There are no hesitation in holding that at two stages, definite liability to pay has been acknowledged and accepted by the corporate debtor. The said liability in both the situations is more than the threshold limit. Hence, having regard to various judicial decisions rendered by the Hon'ble NCLAT that in case of dispute, if the undisputed liability is more than the threshold limit, the application could be admitted. Petition admitted - moratorium declared. - CP ( IB ) No. 1765/ND/2018 - - - Dated:- 17-5-2022 - Bachu Venkat Balaram Das , Member ( J ) And Virendra Kumar Gupta , Member ( T ) For the Appellant : Uttam Datt and Tarun Sharma , Advs. For the Respondents : Saurabh Kalia and Vardaan Bajaj , Advs. ORDER Virendra Kumar Gupta , Member ( T ) Brief facts of the case 1. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated that since the debt claimed by the operational creditor is disputed therefore cannot be adjudicated in a summary proceeding as contemplated under the Insolvency Bankruptcy Code and it requires evidence to be led by the parties. 7. It is submitted that there is no default on the part of the corporate debtor and no amount is legally due or payable to the operational creditor. It is submitted that the alleged basis of calculating the alleged amount so claimed is not clear and is vague, therefore, the same is emphatically disputed by corporate debtors. 8. That the Operational Creditor is a company registered in England and is in the business of telecom which includes mobile telecom services in the UK. The Corporate debtor is in the business of telecom which includes providing international SIM cards to Indian clients travelling to the UK. 9. That the parties entered into an 'EE Framework Reseller Agreement' (herein referred as Agreement ) dated 26.03.2015, whereby the operational creditor would provide mobile telecom services to the customers of Corporate debtor while they are travelling in the UK. Under this Agreement, operational creditor provides SIM cards t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siness loss the corporate debtor suffered due to operational creditor cutting of its services. The entire dispute between the Corporate Debtor and the Operational Creditor is explained in the reply filed by the Respondent (Para L of the reply at Page to Page 17). The Respondent craves leave of this Hon'ble Tribunal to read the said Para as part and parcel of the instant submissions. 15. The chart depicting the emails showcasing the dispute debt is annexed herewith as Annexure -A. The compilation of judgments relied upon by the Corporate Debtor are annexed with the instant submissions as Annexure -B. 16. It is also submitted that the alleged Power of Attorney placed on record by the operational creditor to authorize Mr. Kaviraj Singh to file the present application is also defective in as much as the same appears to be executed outside India and therefore the same has to be approved from their embassy situated in India. Even in the alleged Power of Attorney the operational creditor has been described as a Private Limited Company, however the Operational Creditor is a division of BT Group pic, a Public Limited Company. 17. In view of the above, it has been prayed that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecovery of damages through litigation has been made. However, subsequently an email dated 18.09.2017, GBP 10,000 have been agreed as a full and final settlement by the corporate debtor. In this email, it has also been mentioned that such offer was without any prejudice to the legal rights and claims by the corporate debtor for damages due for loss of business and reputation due to un-professional behaviour on the part of operational creditor. It is now settled that the use of words without any prejudice have got no adverse bearing on the acknowledgement of debt. Thus, the use of these words in no manner gives any respite to the corporate debtor. 24. Thereafter, we have also perused an email dated 15.02.2019, which is a verbatim repetition of the email dated 24.08.2017. Hence, in view of its mail dated 18.09.2017, it does not support the claim of the corporate debtor that it had not accepted liability to pay any amount. Further, this email is of general nature and the corporate debtor in this email has not stated that the amount of liability accepted by it in earlier emails dated 31.07.2017 or 18.09.2017 were not payable. Thereafter, correspondences with the counsel of the oper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Security Interest Act, 2002 (54 of 2002); d. The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the respondent. 29. The supply of essential goods or services of the Corporate Debtor shall not be terminated, suspended or interrupted during moratorium period. The provisions of sub-section (1) of section 14 of IBC, 2016 shall not apply to such transactions, as notified by the central government. 30. The IRP shall comply with the provisions of sections 13(2), 15, 17 and 18 of the Code. The directors of the Corporate Debtor, its Promoters or any person associated with the management of the corporate debtor shall extend all assistance and cooperation to the IRP as stipulated under section 19 for discharging his functions under section 20 of the IBC, 2016. The Operational Creditor is directed to immediately pay an amount of Rs. 2,00,000/- to IRP for complying with the above-mentioned provisions read with relevant regulations. 31. The operational Creditor is directed to send the copy of this Order to the IRP with immediate effect, so that he could take charge of the corporate debtor's assets etc., and make c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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