Madhumitha Software Services vs Apitco Ltd

M/s. Madhumitha Software Services ...Appellant

Vs.

APITCO Ltd. ...Respondent

Present: For Appellant: - Mr. Ashok Kumar and Mr. Mithlesh Kr. Singh, Advocates.

For Respondent:- Mr. Sidharth Jain and Mr. T.N. Divya, Advocates.

ORDER

10.05.2018- The Appellant claimed to be an 'Operational Creditor' and

filed an application under Section 9 of the Insolvency and Bankruptcy

Code, 2016 (hereinafter referred to as "I&B Code") against M/s. APITCO

Ltd. ('Corporate Debtor'). The Adjudicating Authority (National Company

Law Tribunal), Hyderabad Bench, Hyderabad, by impugned order dated

22nd March, 2018 dismissed the application on the ground of 'existence

of dispute'.

2. Learned counsel for the Appellant tried to impress the Appellate

Tribunal that there is no existence of dispute. However, we find that in

reply to demand notice under section 8(2) of the 'I&B Code', the

'Corporate Debtor' by letter dated 22nd August, 2017 intimated that in

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

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terms of the agreement the amount has been paid. The 'Corporate

Debtor' also mentioned the defects and the counter claim, relevant

portion of which is quoted below:

" xxx xxx xxx

Until May 2016, my client got support from you

after considerable delays to enable completion of

the training for only 3571 candidates, while

training for more than 500 trainees was disrupted

in between abruptly which indicated a clear

sabotage by you to provide support as Master

Facilitator which has been a breach of trust from

your side resulting into a total chaos, financial loss,

loss of reputation and goodwill of my client. The

trainings including placements for 3571

candidates should have been completed within a

year time, but it got delayed for nearly two years

leading to financial loss & loss of reputation in front

of the Ministry."

"xxx xxx xxx

(3) It is submitted that the total number of

Company Appeal (AT) (Insolvency) No. 197 of 2018 -3-

candidate for whom the training could be

successfully completed was 3571. Thus, the total

eligible amount payable to you as per agreed terms

for the 3571 candidates is Rs. 3,32,81,720/-. But,

the total advances paid by my client to you is a sum

of Rs. 6,30,90,196/-. My client has paid an excess

amount of Rs. 2,45,08,476/- only to ensure proper

coordination and completion of the project, which

you are liable to refund the same to my client since

you are responsible for abrupt closure of the

support services. Thus, to preempt and to avoid the

refund of the said amount, you have issued the

present false notice to my client."

3. In view of the aforesaid 'existence of dispute', we are not inclined

to interfere with the impugned order passed by the Adjudicating

Authority. The appeal is accordingly dismissed. No cost.

(Justice S.J. Mukhopadhaya) Chairperson

(Justice Bansi Lal Bhat) Member(Judicial) Ar/uk Company Appeal (AT) (Insolvency) No. 197 of 2018