As Technosoft Pvt. Ltd vs Goldsquare Sales India Pvt. Ltd

AS Technosoft Pvt. Ltd. ...Appellant

Vs.

Goldsquare Sales India Pvt. Ltd. ...Respondent

Present: For Appellant: - Mr. Atul Kumar, Advocate.

For Respondent: - Mr. Naresh K. Daksh, Advocate.

ORDER

11.01.2018- This appeal has been preferred by Appellant- M/s. AS

Technosoft Private Limited ('Operational Creditor') against the order dated

3rd November, 2017 passed by the Adjudicating Authority (National

Company Law Tribunal), New Delhi Bench, New Delhi, whereby and

whereunder the application preferred by the Appellant under Section 9 of

the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "I&B

Code") for initiation of 'Corporate Insolvency Resolution Process' against

the Respondent- M/s. Goldsquare Sales India Pvt. Ltd. ('Corporate Debtor')

has been rejected on the ground of 'existence of dispute'.

2. Learned counsel appearing on behalf of the Appellant submits that

no dispute was existence and but the dispute was raised only after notice

was issued on 8th September, 2017 under sub-section (1) of Section 8 of

the 'I&B Code' which cannot be taken into consideration to reject the

application.

Contd/-............

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3. In reply, learned counsel appearing on behalf of the Respondent

referred to Advocate notice dated 29th August, 2017, wherein the Appellant

has been informed as follows: -

"6. I have also instructions to say that since you

breached the contract and have taken/ charged

excess payment from my Client even without having

complied with the terms of contracts, you the

addressee are bound to refund the said amount of

Rs. 1.55 Crore to my Client and further, you the

addressee also liable to make good all the losses

sustained to my Client due to such defective,

fraudulent and negligent services. I have

instructions to say that since the losses suffered by

my Client due to such breach of contract, defective

and negligence services cannot be assessed in terms

of money but without prejudice to its rights to claim

higher amount, my Client is assessing the said

losses on account of loss of goodwill, reputation and

business losses to the tune of Rs. 50,00,000/-

(Rupees Fifty Lacs only) and reserves its right to

claim higher amount."

4. Learned counsel appearing on behalf of the Appellant contended

Company Appeal (AT) (Insolvency) No. 331 of 2017 -3-

that the said notice has been issued by an Advocate on behalf of M/s.

Awari Technologies Pvt. Ltd. and not by the Respondent- M/s.

Goldsquare Sales India Pvt. Ltd.

5. Learned counsel appearing on behalf of the Respondent clarified

that the agreement was reached between M/s. Awari Technologies Pvt.

Ltd. and the Appellant for sending e-mails. Later on, M/s. Awari

Technologies Pvt. Ltd. intimated the Appellant that the payment will be

made by the Respondent- M/s. Goldsquare Sales India Pvt. Ltd.

therefore, the Advocate notice given by M/s. Awari Technologies Pvt. Ltd.

relates to the e-mail supply for which the payment is due from the

Appellant which shows substandard quality of sending e-mails.

6. He relied on an e-mail dated 21st May, 2017 send by the

Respondent to Mr. Alok Kumar Gupta, who was dealing of the affairs of

the Appellant. In the said e-mail forwarded overall 'inbox placement' has

been shown. For one of the month it is shown that out of 100% mails,

'spam' is 37.4% and 'inbox' is 62.6%. Similarly, for another month the

'spam' is 31.9% and 'inbox' is 68.1%. Similarly, in another month the

'spam' is 67.3% and 'inbox' is 32.7%. The aforesaid e-mail of Respondent

itself suggest that a number of e-mails were not reached the 'inbox' which

shows inefficiency on the part of the Appellant, though they claimed

100% payment. From the record, we find that the Appellant has also

replied to the aforesaid e-mails and denied the allegations whereinafter

part payment has been made. Payments have been made against some of

Company Appeal (AT) (Insolvency) No. 331 of 2017 -4-

the bills and TDS has been deducted.

7. From the aforesaid facts, it is clear that there is an 'existence of

dispute'. For the said reason, we are not inclined to interfere with the

impugned order dated 3rd November, 2017 passed in Company Petition

No. (IB) 386 (ND)/2017. In absence of any merit, the appeal is dismissed.

However, in the facts and circumstances of the case, there shall be no

order as to cost.

(Justice S.J. Mukhopadhaya) Chairperson

(Justice Bansi Lal Bhat) Member(Judicial) Ar/G

Company Appeal (AT) (Insolvency) No. 331 of 2017