JUDGEMENT

(26^th May, 2022) Ashok Bhushan, J. 1. This Appeal has been filed against the order dated 17.01.2022 passed by the Adjudicating Authority (National Company Law Tribunal), New Delhi Bench (Court-II) admitting the Application under Section 9 of the Insolvency Comp. App. (AT) (Ins) No. 58 of 2022 and Bankruptcy Code, 2016 (“IBC” for short) filed by the Respondent- ‘M/s.

Sahaj Bharti Travels’ (Operational Creditor). The Appellant aggrieved by the said order has come up in this Appeal. This Tribunal while entertaining the Appeal on 19.01.2022 has stayed the order dated 17.01.2022 passed by the Adjudicating Authority. The brief facts of the case and sequence of the events necessary to be noticed for deciding this Appeal are:-

The Respondent No.2- ‘HCL Technologies Ltd.’ is a globally renowned business entity providing goods and services to various domestic and international government and private entities. The Respondent No.2 had reported a turnover of INR 51,786 Crores and a profit of INR 8,722 Crore as per its books for financial year ending on 31.03.2018. In the year 2015, the Corporate Debtor entered into an Agreement dated 19.11.2015 with Respondent No.1- Operational Creditor for provision of cabs to pick up and drop Corporate Debtor’s personnel to and from various locations. Term of the Agreement was from 20.04.2015 to 30.04.2018. As per the payment terms of the Agreement, invoices were required to be raised in terms of the Agreement within 60 days for services ‘delivered’ as well as services ‘billed’. As per Schedule A of the Agreement, in case cabs do not run for a minimum of 7000 kilometers, upon being eligible by fulfilling certain pre-conditions mentioned therein, a minimum guarantee amount would be payable. The Agreement was extended by Corporate Debtor till 31.12.2018. As per the Agreement between the parties, the Operational Creditor submitted its bills for services provided during the period of currency of Agreement and all invoices raised by the Operational Creditor were duly paid by the Corporate Debtor.

Comp. App. (AT) (Ins) No. 58 of 2022 On 25.05.2018, an e-mail was sent by the Operational Creditor to the Corporate Debtor on subject of minimum guarantee payment. By e-mail of the same date, Corporate Debtor called the Operational Creditor for discussion. Meeting took place on 28.05.2018. E-mail dated 29.05.2018 was sent by the Operational Creditor itself with regard to Minutes of Meeting where it was mentioned that “payment dispute to be divided into two parts…..”. After further meetings and some correspondences, e-mail dated 05.09.2018 was sent by the Corporate Debtor to the Operational Creditor forwarding the calculation of minimum guarantee and requesting the acceptance and confirmation of the Operational Creditor along with the attachment which was part of the e-mail total amount Rs. 20,58,818/- was communicated. An e-mail dated 29.11.2018 was sent by the Corporate Debtor to Operational Creditor stating that the Corporate Debtor has verified the records and as per the records, no amount is outstanding or payable to Operational Creditor in terms of the Agreement including an account of minimum guarantee provision. E-mail further stated that however, considering the business relationship and with an objective of working together in future, the Corporate Debtor propose a good faith offer of Rs.20,58,818/- as one time full and final settlement of all issues between the parties. The Operational Creditor was requested to communicate his acceptance until 5 P.M. on 06.12.2018 after which the offer of Rs.20,58,818/- will lapse and be no longer capable of acceptance. On 03.12.2018, Operational Creditor requested to make payment of Rs.81,96,237/-. Thereafter, a Demand Notice dated 08.05.2019 under Comp. App. (AT) (Ins) No. 58 of 2022 Section 8 of the IBC was sent by the Operational Creditor to the Corporate Debtor claiming total amount of debt due from the Corporate Debtor as Rs.3,54,10,565/-.