Company Appeal (AT) (Insolvency) No. 23 of 2019

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NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI

Company Appeal (AT) (Insolvency) No. 23 of 2019

(Arising out of Order dated 8^th November, 2018 passed by the Adjudicating Authority

(National Company Law Tribunal), Bengaluru Bench in C.P.(IB)No.25/BB/2018)

IN THE MATTER OF:

M/s GupShup Technology India Pvt. Ltd.

101, 1^st Floor, Silver Metropolis,

Western Express Highway,

Goregaon (East),

Mumbai – 400063.

.... Appellant

Vs

M/s Interpid Online Retail Pvt. Ltd.

No.20, Ward No.93/78,

8^th Main, 6^th Cross,

Vasanthnagar,

Bengaluru – 560052.

.... Respondent

Present:

For Appellant:

Shri Jai Sahai Endlaw and Mr. Shivansh

Soni, Advocates.

For Respondent:

Ms. Anushka Sharda and Mr. Rohit Ghosh,

Advocates.

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

M/s Gupshup Technology India Pvt. Ltd. (Operational Creditor) filed

application under Section 9 of the Insolvency and Bankruptcy Code, 2016

(hereinafter referred to as ‘I&B Code’) against ‘M/s Interpid Online Retail Pvt.

Ltd.’ (‘Corporate Debtor’) which having rejected by Adjudicating Authority

(National Company Law Tribunal), Bengaluru Bench, Bengaluru by order

Company Appeal (AT) (Insolvency) No. 23 of 2019

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dated 8^th November, 2018, the present appeal has been preferred by the

Appellant.

2.

According to the Appellant it entered into Agreement with Respondent

– M/s. Interpid Online Retail Pvt. Ltd. on 8^th October, 2014. The Agreement

was for a period of one year and as per Clause 3.2 of the Agreement, it would

get auto renewed for further period of one year each unless terminated by

either party. As per Clause 4.2 of the Agreement, the Appellant would send

monthly invoices to the Respondent for the fees accrued in the previous

month in accordance with the terms set out in Schedule 3. Thereafter, the

Respondent would verify the invoices from the Appellant and thereafter pay

such valid invoices within 15 business days. Further, as per Clause 4.5 of

the Agreement, the Respondent was liable to pay interest at the rate of 1.5%

per month on any sums overdue after a period of 15 business days from the

receipt of a valid invoice.

3.

In between 2014-2015, the Appellant provided the said services to the

Respondent from time to time for which the Appellant raised invoices at the

end of every month towards the consumption of the said service in terms of

the aforesaid Clause. The Appellant continued to provide services to the

satisfaction of the Respondent and the Respondent did not raise any

complaints about the services rendered by the Appellant or about the

invoices raised by the Appellant in the years 2014, 2015 and 2016.

4.

It is stated that for the first time Respondent defaulted in making the

payment towards the invoices on 16^th June, 2015 and had not made any

Company Appeal (AT) (Insolvency) No. 23 of 2019

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payment towards the debt since then, as a result of which its services were

discontinued after July, 2015.

5.

On 15^th April, 2017, the Respondent acknowledged the debt and

informed that they were expecting some funds from its investors, which was

delayed and it was the reason for non-payment of the outstanding dues.

6.

The record of the services carried out as on 5^th September, 2017 shows

that the Respondent availed the services through the SMS Dashboard and

had its own dedicated user name and password for logging. However, the

Respondent in their email dated 5^th September, 2017 sought details of email

logs and other supporting documents in order to verify the invoices.

7.

The Appellant issued a Demand Notice under Section 8(1) on 24^th

October, 2017 and for the first time the Respondent in its reply under Section

8(2) by intimation dated 3^rd November, 2017 raised false and frivolous

allegations.

8.

After completion of more than 10 days, the Appellant filed an