DHL Supply Chain India Private Limited vs Eicher Motors Limited

PER: SH. L. N. GUPTA, MEMBER (T)

DHL Supply Chain India Private Limited (for brevity, the ‘Applicant/Operational Creditor’) has filed the present petition under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for brevity, the ‘IBC, 2016’) read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 with a prayer to initiate the Corporate Insolvency Resolution Process against M/s. Eicher Motors Limited (for brevity, the ‘Respondent’).

The Respondent namely, M/s. Eicher Motors Limited is a Company incorporated on 14.10.1982 with CIN L34102DL1982 PLC129877 under the provisions of the Companies Act, 1956 having its Registered Office at 3^rd Floor, Select City walk, A-3 District Centre, Saket, New Delhi - 110017, which is situated within the jurisdiction of this Tribunal. The Authorized Share Capital of the Respondent Company is Rs.31,01,00,000/- and Paid-up Share Capital is Rs.27,34,11,022/- as per Master Data.

It is stated by the Applicant that the parties entered into an Agreement called “Service Agreement for Warehouse” (hereinafter referred to as ‘Agreement’) dated 29^th August 2019. By the said Agreement, the Respondent engaged the services of the Applicant for delivering Logistics and Warehousing Services as listed in Schedule A to the said Agreement (termed as ‘Third Party Logistics and Warehousing’ services) on the terms and conditions mentioned therein. The Applicant has further stated that -

In terms of the Agreement (ibid), the Applicant provided services to the Respondent and raised invoices. After adjusting for the payments received and excluding the default arising from 25^th March 2020 to 24^th March 2021, 6 invoices aggregating to Rs. 1,30,54,713.00 (inclusive of GST) remained due and payable by the Respondent to the Applicant towards the ‘Third Party Logistics and Warehousing’ services, for which the dates of default are falling between 30.03.2021 and 05.06.2021. The Applicant has further submitted that in terms of the invoices containing stipulation regarding “Interest @18% will be charged on the overdue invoice amount for the delayed period”, an amount of Rs.25,82,954/-(inclusive of GST) towards interest up to 31^st October 2021 is also due and outstanding.

As per clause 12.1, the term of the Agreement was three years effective from 01.10.2019 to 30.09.2022. The entire term constituted a lock-in period for both parties. In November 2020, the Respondent informed that it proposed to use the warehouse for storing Bikes and Spare Parts instead of storing Genuine Motorcycle Accessories (GMA) and Apparel. The Respondent discussed the said possibility with the Applicant. In or about February 2021, the Respondent decided not to use the warehouse even for bike storage and sought to prematurely terminate the Agreement dated 29.08.2019. The Applicant rejected the said proposal of the Respondent for premature termination of the Agreement vide its letter dated 21.04.2021. On the failure of the Respondent to respond to the letter/notice dated 21.04.2021, the Applicant vide emails dated 10^th May 2021 and 25^th May 2021 informed the Respondent to remove the assets lying in the warehouse.

The Respondent sent a reply dated 31.05.2021 to the Applicant in response to the letter/notice dated 21.04.2021 and the email dated 10.05.2021. As the dismantling and shifting etc. was to be done by the Applicant, the Applicant raised an Invoice bearing Number 61006552 dated 24.06.2021 of Rs.1,11,734.34 on the Respondent.

The Applicant raised another Invoice No. 61007855 dated 28-Oct 2021 of Rs. 2,19,55,341.96/-, (inclusive of GST) on the Respondent towards Fixed Warehousing Charges for the period 1^st May 2021 to 31^st October 2021. The Applicant further raised Invoice No. 61007856 dated 28-Oct-2021 of Rs. 4,51,81,303.20/-, (inclusive of GST) on the Respondent towards Fixed Warehousing Charges for the period 1^st November 2021 to 31^st October 2022.

During the course of the hearing on 20.07.2022, the Ld. Counsel appearing for the Applicant sought to amend the Part-IV of the application to clearly indicate the amount of debt and date of default which is not failing under the Section 10A period. Accordingly, one week’s time was allowed. In compliance with the aforesaid order, the Applicant filed the amended Part IV of the application vide their filing dated 26.07.2022, which is reproduced overleaf:

As evident from Part IV (ibid), the Applicant has claimed unpaid Operational Debt of Rs.8,28,86,046/-. We notice that despite the opportunity for rectification of the Application, the Applicant failed to indicate the specific date of default at Serial No.2 of Part IV.

It is stated by the Applicant that a Demand Notice dated 07.12.2021 under Section 8 of IBC 2016 was sent by E-mail to the Respondent. The Applicant has filed the Affidavit under Section 9(3)(b) of IBC, 2016 stating that no notice of dispute has been received by it.

On issuance of the notice, the Respondent filed its reply and written submissions stating the following:

The Demand Notice issued by the Applicant is not in compliance with Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. The Demand Notice is not served upon the Corporate Debtor at the registered office by hand, registered post, or speed post with acknowledgment due or by electronic mail service to a whole-time director or designated partner or key managerial personnel. It is served via email only at <[email protected]> which is not the email address of a key managerial personnel.

The e-mail ids of the Directors are publicly available on the website of the Ministry of Corporate Affairs in Form DIR-12. The Applicant was also aware that Mr. Kaleeswaran Arunachalam was the Chief Financial Officer of the Respondent and Mr. Manhar Kapoor was the Company Secretary of the Respondent.

The Applicant was also aware of the registered address of the Respondent (see Form-5 on pg. 12-44, Vol. 1 of the Petition). Invoices attached to the Petition were also served upon the registered address. Despite having knowledge of this information, the Applicant deliberately served the Demand Notice at [email protected] in breach of Rule 5. Such service is defective.

Additionally, whereas in the Section 9 Application, the Applicant has made a claim for Rs. 8,28,86,046/-, in the Demand Notice it has made a demand for Rs. 9,07,25,209/- (see pg. 287, Vol. II of the Petition). Hence, the higher amount being claimed in the Demand Notice makes the demand notice defective.

Various emails were exchanged between the parties evidencing deficiency in services provided by the Applicant under the Agreement. These deficiencies in services caused a huge loss to the Respondent and amounted to a breach of clauses under the Agreement. A list of correspondence regarding deficiencies is given below:

Emails dated 3^rd June 2020 addressed by Respondent citing business loss of 25 to 28 Lacs sales every day (Annexure -1 Page No. 34 of Reply).

Emails dated 20^th February 2020 and 8^th June 2020 citing delay in the processing of orders at the warehouse due to which there were several cases of dissatisfaction amongst customers. (Annexure-3 Page No. 41-42 of Reply) and 8^th June 2020.

Emails dated 3^rd January 2020 citing losses suffered by Respondent on account of SLA breach and the resulting failure of Applicant to dispatch the online orders to customers. (Annexure-3 Page No. 44 of Reply). Email dated 28^th January 2020 for non-dispatch of orders despite the material being available at the warehouse (Annexure-3 Page No. 46 to 48 of Reply).

Emails dated 20th February 2020 and 21^st February 2020 stating backlogs in the dispatch of orders and lack of productivity by Applicant (Annexure-3 Page No. 49 of Reply).

Email dated 27^th May 2020 by Respondent stating that “there is no point in coming with reasons after 6 months into operations. This project is completely mismanaged, that we are forced to take out helmets first to Jaipur, then GMA to bike depot, and another set of Gear Category to another warehouse. The storage volumes are drastically dropped…” (Annexure-3 Page No. 51 to 58 also on Page 134 of Reply).

Emails dated 6^th and 7^th December 2019 highlighting that operational issues of the Applicant are seriously affecting the business of the Respondent (Annexure-4 Page No. 60-61 of Reply).

Emails dated 13^th December 2019 and 16^th December 2019 citing operational issues (Annexure -5 Page No. 65 to 68 of Reply)

Email dated 26^th February 2020 stating that an outward stock of Rs. 2.89 Crores was readily available but not billed as per the stock report (Annexure-6 Page No. 69 of Reply).

The Applicant was obligated to perform its obligations as enumerated under Schedule A of the Agreement (see clauses 2.1, 2.4 and 3.2 of Agreement @ pg. 52 of Petition). Non-compliance of KPI’s for outbound operations (Key Perform Indicators) (part of Schedule A @ pg. 72 of Petition).

Emails dated 3^rd January 2020 to 7^th January 2020 stating that 52 online orders are picked, packed, and invoiced but not dispatched (Annexure-7 Page No.76 of Reply).

Emails dated 17^th June 2020, wherein the Applicant states that “the instability, lack of training, ownership and process violations by DHL Team has resulted in failure of operational KPI to internal and external customers. DHL has also failed in providing agreed MIS, Accuracy in the daily reports, Productivity per each activity/category per manpower and KPI as per agreed format….” (Annexure-8 Page No. 82-83 of Reply).

Non-compliance of KPI’s for billing/dispatch (Key Perform Indicators) (part of Schedule A @ pg. 72 of Petition).

Email dated 28^th January 2020 stating that orders dated 31^st December 2019 to 21^st January 2020 were not billed despite stock availability as per SAP records (Annexure 9 Page No. 86 of Reply).

Emails dated 20^th February 2020 demonstrating a list of products available in high stock in quantity not seen available on the website of Respondent for sale (Annexures- 10 &11 Page No. 92 to 95 of Reply).

Non-compliance of KPI’s for billing/dispatch (Key Perform Indicators) (part of Schedule A @ pg. 72 of Petition).

Emails dated 04^th February 2020 and 22^nd February 2020 stating daily productivity target is not being achieved. The list provides a summary of delays shared (Annexure12 Page No. 96 to 99 of Reply).

Non-compliance of KPI’s for inbound and inventory operation (Key Perform Indicators) (part of Schedule A @ pg. 72 of Petition).

Emails dated 5^th February 2020, 06^th February 2020, 7^th February 2020, 21^st February 2020, 21^st February 2020, 22^nd June 2020, and 24^th June 2020 stating that the items were not properly handled by the representatives of the Applicant and had the wrong MRP labels. Photographs were shared. (Annexure- 13 Page No. 100 to 122 of Reply).

There was no change even in the month of June 2020. Emails dated 26^th May 2020, 1^st June 2020, 3^rd June 2020, and 4^th June 2020 highlighting the same issue with photographs placed at Annexure- 13 Page No. 100 to 122 of Reply.

Emails dated 5^th June 2020, 8^th June 2020, and 11^th June 2020 highlighting issues regarding output at the warehouse (Annexure - 17 Page No. 149 to 156 of Reply). Email dated 8th June 2020 addressed by Corporate Debtor stating that “there are a lot of operational challenges on a daily basis which are affecting the warehouse operations and end customer satisfactions. Please look into the same quickly to ensure warehouse operations are aligned with internal and external basic customer requirements.” (see pg. 153 of Reply)

Non-compliance of KPI’s for billing/dispatch (Key Perform Indicators) (part of Schedule A @ pg. 72 of Petition)

Despite addressing numerous emails to the Applicant as stated above, the Applicant did not take any steps to rectify these inadequacies. As a result of these inadequacies, the Respondent had to separately take up additional warehouse space of 40,000 sq. ft. at Jaipur and 15,000 sq. ft. at Gurgaon with an increased cost to the Respondent. Despite this, the Applicant could not perform with reduced pressure. As a result of which the Respondent was forced to vacate the premises.

Email dated 17th June 2020 addressed by the Respondent highlighting losses suffered by stating that “…DHL being the expertise in warehousing solutions, it was expected DHL to provide proper warehousing solutions based on the data shared and the understanding of live operations gathered during various visits to RE warehouse. The compulsory helmet management involved unloading vendor trucks opening each box/physical verification of each quantity/scanning for GRN/repacking of boxes/internal movement/put away/storage/ picking /opening each box/scanning/repacking of each boxes/ dispatch/labelling/loading into transporter trucks and dispatches. All these activities got removed from the warehouse due to direct dispatches of helmets to depots due to non-control on the floor and lack of operational experience by the DHL team at the site. DHL failed to reallocate or effectively utilise that manpower. There was an additional manpower of 50 headcounts provided to DHL at the beginning to stabilize the operations but unfortunately with additional manpower also, DHL was not able to meet the operational KPI’s and required output on a daily basis. In the absence of clear proof and quantifiable productivity data, it will be difficult to conclude the losses due to EWM issues claimed. There were various meetings happening and DHL failed to provide valid proof and data to RE-IT Team to analyse. The IT Team has observed various process violations and wrong practices by the DHL team at site, which leads to errors, reworking and productivity losses….” (Annexure- 18 Page No. 163 of Reply).

Despite being forced to vacate, the Respondent herein in good faith attempted to see if the warehouse could be repurposed, However, the parties could not agree upon any terms and conditions. As a result, the discussions for repurposing failed and the Respondent vacated the premises in the month of January 2021.

Email dated 12^th January 2021 stating these good faith discussions and subsequent unilateral blockage of dispatches of inventory by the Operational Creditor. In the said email, the Corporate Debtor had clearly pointed out to the Corporate Debtor that:

Emails dated 29^th April 2021 and 13^th May 2021 pertaining to reconciliation statements exchanged between the parties where the Operational Creditor admitted that an amount of Rs.41,98,073/- was due and payable by Applicant to the Respondent (Annexure- 20 Page No. 171 to 173 of Reply).

Email dated 15^th February 2021 pertaining to the repurposing of the warehouse space (Annexure- 21 Page No.174 to 176 of Reply).

Email dated 23^rd December 2020, 28^th December 2020 and 29^th December 2020 stating delay in inventory transfer from warehouse to Jaipur causing sales loss to Respondent (Annexure-24 &25 Page No. 189 to 200 of Reply).

The Applicant then issued a legal notice which was replied to by the Respondent. A rejoinder to the Reply was thereafter issued by the Applicant and all this was prior to the issuance of demand notice.

Legal notice dated 21^st April 2021 issued by Applicant through its advocate regarding termination of the agreement and raising a claim of Rs. 9.15 crores (see pg. 144, A-10, Petition).

In reply, Respondent vide its advocate’s letter dated 31^st May 2021 disputed the claim on account of deficiency in services along with relevant correspondence exchanged between the parties (see pg. 158 to 164, A-12, Vol. I, Petition).

The correspondence mentioned above overwhelmingly establishes severe disputes between the parties inter-se, with each party having claims/counter-claims against the other.

In view of the unilateral blockage of dispatches of inventory pointed out by the Respondent and refusal on the part of the Applicant to rectify the same, it was agreed between the parties to terminate the agreement in December 2020 itself and consequently, steps were taken by both parties to mitigate their losses. (Annexure 19 on Page No.167 to 170 of Reply).

By way of an e-mail dated 27th May 2020 (Annexure 3 on Page No.41 to 58 of Reply), the Respondent had already pointed out to the Applicant its intention to vacate the warehouse as the project was totally mismanaged and the Respondent was forced to take out its helmets to a warehouse in Jaipur and the GMA to the bike depot and another set of gear category to another warehouse.

Thereafter, some negotiations took place to explore alternate business models to revive the business relations between the parties by way of a fresh agreement in relation to the warehouse, however, the same failed.

In the meanwhile due to the deficiency in service on the part of Applicant, the Respondent removed its inventory and vacated the warehouse in January 2021 and the said fact is not disputed by the Applicant.

The same is also well documented in an e-mail dated 29^th April 2021 (Annexure 20 at Page No.171 to 173 of Reply) addressed by the Respondent to the Applicant wherein the Respondent has clearly shared a full and final reconciliation statement taking into account the shortfall of stock, shipment storages, pending sales returns, stock mismatch, shortage of assets scrapped without approval.

The Applicant did not dispute any of the deficiencies with justifiable reasons but also admitted that an amount of Rs. 41,98,073/-was due and payable by the Applicant to the Respondent on account of such deficiencies by email dated May 13, 2021.

We have heard the submission of the parties on 21.11.2022, 22.12.2022, and 01.02.2023 and perused the documents placed on the record including the written submissions filed by both parties. During the hearings on 21.11.2022, the Ld. Counsel appearing on behalf of the Applicant argued and reiterated almost all the points as stated in its application, written submission, and rejoinder. He stated that the Applicant has claimed an amount of Rs. 8.28 Crores, for which the Applicant had served the Demand Notice on the Respondent on 07.12.2021 at the email id mentioned in the master data of the Company. The Ld. Counsel appearing on behalf of the Respondent contended that the present petition is not maintainable as the service of Section 8 Demand Notice was defective, three categories of claims have been bunched together and there were pre-existing disputes between the parties. Further, he argued that the Agreement dated 29.08.2019 was prematurely terminated in January 2021 and thereafter, no services were rendered by the Applicant to the Respondent. Therefore, all the invoices raised by the Applicant thereafter are not related to any services rendered by the Applicant.

The Respondent has argued that the Demand Notice issued by the Applicant is not in compliance with Rule 5 of Application to Adjudicating Authority Rules, 2016 as the Demand Notice is admittedly not served upon the Respondent at the registered office or by electronic mail service to a whole-time director or designated partner or key managerial personnel. Whereas the information/email-ids of its Directors are publicly available on the website of the Ministry of Corporate Affairs, the applicant had chosen to serve the demand notice via e-mail only at [email protected] which is not the email address of its whole-time director or key managerial personnel.

Hence, before going into other aspects, we would like to examine Whether the service of Section 8 demand notice upon the Respondent was a valid one. From the record, it is observed that the Applicant had served the Section 8 Demand notice via email, which is reproduced below:

On perusal of the aforesaid email, it is seen that the Demand Notice was mailed to [email protected] with “Attention (to): The Managing Director”.

At this juncture, we refer to the Master Data of the Respondent Company, which reads thus:

On conjoint reading of the E-mail dated 07.12.2021 and the Master Data of the Respondent Company, it is seen that the Demand notice was sent to the official email id of the Respondent Company. Further, we notice that “Directors/Signatory Details” in the Master Data do not contain the e-mail ids of the individual Directors and on its perusal, one cannot determine who is the whole-time Director/Key Managerial Personnel of the Respondent, and moreover, a director may or may not be falling under the category of whole-time Director/KMP.

At this juncture, we refer to Rule 5 of the Application to Adjudicating Authority Rules, 2016, which reads thus:

It is evident from the Master Data of the Respondent that the email ids of whole-time Directors and Key Managerial Personnel are not available in the public domain. However, the official email id of a Company is known to all. Further, Section 8 notice is a demand against the Corporate Debtor and not against its whole-time Director or Key Managerial Personnel, in their personal capacity. Even the Form 3 and Form 4 formats of issuing a Demand Notice do not stipulate that the Demand Notice shall be addressed to a whole-time Director or Key Managerial Personnel.

At this juncture, we refer to the Judgement of the Hon’ble Supreme Court dated 06.05.2015 passed, in the context of service of Demand Notice under Section 138 of Negotiable Instruments Act proceedings, in the matter of Kirshna Texport and Capital Markets Ltd. Vs Ila A. Agrawal and others in Criminal Appeal No.1220 of 2009, wherein the following was held:

The ID mentioned in Master Data is the official id of the Corporate Debtor/Company and in terms of the judgment of the Apex Court (supra), the whole-time Directors or Key Managerial Personnel, who are in charge and running the affairs of the Company, are supposed to know what all is being received at the official/publicly notified email id of Company especially when “attention” is drawn to its Managing Director.

The Respondent has relied upon the Judgement of Hon’ble NCLAT dated 05.02.2021 in the matter of Jyoti Strips Pvt Ltd Jyoti Strips Pvt Ltd Vs Jsc Ispat Pvt Ltd, COMPANY APPEAL (AT) (Insolvency) No. 775 of 2020, wherein the following was held:

Per contra, in the instant case, as we have already noted that the email containing the demand notice was sent to the E-mail ID of the Respondent Company with “Attention to the Managing Director” of the Respondent, who is very well covered under the definition of a Key Managerial Personnel as defined under Section 2(51) of the Companies Act 2013, which reads thus -

The next plea raised by the Respondent is that there were disputes existing between the parties prior to the issuance of the Demand Notice. In order to determine, whether there is any genuine pre-existing dispute, we would like to visit some of the e-mail communications, on record, that are exchanged between the parties prior to the issuance of the Demand Notice dated 07.12.2021. Accordingly, we first refer to an e-mail dated 17.05/06.2021 written by one Mr. Jayaprakash Gopalkrishna Pillai, official of the Respondent Company to Mr. Anup Bhattacharya official of the Applicant Company, which reads thus:

On perusal of the aforesaid e-mail, it transpires that the Respondent had shown dissatisfaction towards the services of the Applicant and has communicated that it had to take an Additional Warehouse space at Jaipur and Gurgaon to manage its operations.

We also come across e-mail communications dated 20.02.2020 written by Jayaprakash of the Respondent Company to Mr. Rajeev Gangwar of the Applicant Company and subsequently, by M.G Madhu of the Respondent Company to one Mr. Rajeev Gangwar, Mr. Naveen Sharma, and Mr. Vijay Dhillon of the Applicant Company, which reads thus:

On perusal of aforesaid e-mails, it is observed that again the Respondent had pointed out that the “Online orders are getting delayed for processing” and it had asked the Applicant Company to check “…why this was delayed for so many days?”. Subsequently, M.G Madhu on behalf of the Respondent Company had communicated that “this is a serious concern and creating lots of dissatisfaction among customers.”

We find another e-mail dated 18.05.2021 sent by Ms. M.G. Madhu official of the Respondent to Mr. Rajeev Gangwar, Mr. Naveen Sharma, and Mr. Vijay Dhillon officials of the Applicant, which reads thus:

On perusal of the aforesaid e-mail, it is noticed that the Respondent had observed that “…The project is totally mismanaged…. The storage volumes are drastically dropped….”.

In the sequel to the discussion above, we find that though in the instant case, the demand notice was issued on 07.12.2021, there is sufficient material in the form of e-mail communications between the parties on record, which clearly demonstrates that there were pre-existing disputes between the parties.

It is still contented by the Applicant in its written submissions that out of the total amount of Rs.1,30,54,713/- mentioned in Part IV at Serial No. 1 (I), the invoices for the fixed charges aggregate to Rs. 1,23,18,392.88 [Rs.41,06,130.96 @ pages 113-114 + Rs.41,06,130.96 @ pages 117-118 + Rs.41,06,130.96 @ pages 121-122], while invoices for variable charges aggregate to Rs.7,36,320.00 (pages115-116/119-120/123-124). Thus, the fixed charges component for the services provided alone exceeds the threshold limit of Rs. 1 crore. The Applicant has placed reliance on the Judgement dated 08.12.2020 passed by the Hon’ble NCLAT in Company Appeal (AT) (Ins.) No. 412 of 2020 titled “Apya Capital Services Private Limited v Guardian Homes Private Limited”. The Applicant has further added that against the said judgment a Civil Appeal No. 1813 of 2021 was filed before the Hon'ble Supreme Court of India, which was dismissed vide Order dated 01.07.2021 of the Hon’ble Apex Court.

Per contra, it is contended by the Respondent that it had vacated the Warehouses Premises, under the Agreement, in January 2021 only and the question of it availing any services and the Applicant provided those services thereafter does not arise.

However, the Applicant has denied this fact in its Rejoinder dated 31.10.2022 that the premises were vacated in the month of January 2021. The relevant averment of the Applicant in the Rejoinder to that effect is reproduced below:

Therefore, at this stage, we would like to examine both parties’ versions from the records available before us. While going through the documents, we find an email dated 05.01.2021, written by Mr. Anup Bhattacharya of the Applicant, which is reproduced below:

On perusal of the aforesaid e-mail, we observe that the Applicant was well aware that the Respondent was vacating their warehouse premises to another location as part of their normal business transaction. Further, in response to the aforesaid e-mail dated 05.01.2021 of the Applicant, the Respondent had sent the following e-mail on 12.01.2021:

Thus, the aforesaid e-mail communications clearly indicate that the submission made by the Applicant in its Rejoinder that it had no knowledge of the Respondent vacating the premises is misplaced.

Thus, as revealed from the documents on record, the Warehouses Premises stood vacated by the Respondent in January 2021. What the Applicant has been claiming are the fixed charges for the subsequent period as per the Agreement. At the most, these claims of the Applicant could be in the form of damages on account of premature termination of the Agreement. In this context, we refer to the Judgement of the Hon’ble Supreme Court passed in the matter of India vs Raman Iron Foundry (1974 AIR 1265, 1974 SCR (3) 556), wherein the following was held:

Accordingly, the claim of damages can only be adjudicated by a Civil Court and will be outside the ambit of the Operational Debt.

In light of the discussion held above, we observe pre-existing disputes between the parties before the issuance of the Demand Notice. At this stage, we consider it worthwhile to refer to the Judgement of the Hon’ble Supreme Court passed in the matter of Mobilox Innovations Private Limited Vs Kirusa Software Private Limited in the CIVIL APPEAL NO. 9405 OF 2017:

In the instant case, the correspondence on record prodigiously establishes severe disputes between the parties inter-se, with each party having claims/counter-claims against the other. The Respondent too has raised plausible contentions, which require further investigation.

In view of the above we conclude that there being pre-existing disputes between the parties, the Application is dismissed.

However, nothing expressed herein shall be construed as an opinion before any other forum to affect the rights of both parties to agitate the matter further.