AI Structured Summary
Not yet generated for this judgment
Judgment
ORDER
The instant Application has been filed by M/s. Mobligent Media Pvt. Ltd. (hereinafter referred to as the “Operational Creditor/Applicant”) under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the “Code”) read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (hereinafter referred to as the Rules) for initiation of Corporate Insolvency Resolution Process (hereinafter referred to as the ‘CIRP’) against M/s. SynergyByte Infotainment Pvt. Ltd. (hereinafter referred to as the “Corporate Debtor/Respondent”) owing to total outstanding operational debt of ₹1,05,99,599/- (Rupees One Crore Five Lakh Ninety-Nine Thousand Five Hundred and Ninety-Nine only).
BRIEF FACTS:
The averments made by the Operational Creditor/Applicant in its Application and as argued by the Learned Counsel are summarised as under:
The Operational Creditor is a company incorporated under the provisions of the Companies Act, 2013, having its Registered Office at C- 204, Building Number- 2, Nakoda Heights, Sec- 2B, Nilmore, Nalasopara (W), Thane-401203 and is engaged in the business of advertisement and related services, including digital marketing and application development-related services.
The Corporate Debtor approached the Operational Creditor for availing digital marketing and promotional services in respect of its mobile application “Bolo Live”. Pursuant thereto, the parties entered into an Insertion Order containing the mutually agreed terms for carrying out advertisement campaigns for promotion of the said application on various digital platforms.
As per the terms of the Insertion Order, the invoices raised by the Operational Creditor were payable within 45 days from the date of raising of the respective invoices. Pursuant to the instructions and approvals of the Corporate Debtor, the Operational Creditor commenced the advertisement campaign and, upon rendering the agreed services, raised invoices from time to time.
The Operational Creditor has placed on record five unpaid invoices; particulars whereof are set out below:
| Sr. No. | Invoice No. | Date of Invoice | Amount (₹) |
|---|---|---|---|
| 1. | MM/A03/04/22-23 | 01.04.2022 | ₹22,68,124/- |
| 2. | MM/A17/04/22-23 | 18.04.2022 | ₹21,10,137/- |
| 3. | MM/A20/04/22-23 | 25.04.2022 | ₹20,71,101/- |
| 4. | MM/A30/05/22-23 | 10.05.2022 | ₹21,03,083/- |
| 5. | MM/A45/05/22-23 | 24.05.2022 | ₹20,47,154/- |
| Total | ₹1,05,99,599/- | ||
The respective maturity/default dates stated by the Operational Creditor are 17.05.2022, 02.06.2022, 09.06.2022, 24.06.2022 and 08.07.2022, respectively.
It is stated that the services were duly rendered and accepted by the Corporate Debtor without any objection regarding the quality or timelines of the services. The Operational Creditor further states that the Corporate Debtor initially made certain payments but thereafter failed to clear the outstanding invoices.
The outstanding dues were repeatedly communicated to the Corporate Debtor, which assured the Operational Creditor that the payments would be made. It is further stated that the Corporate Debtor acknowledged its liability through email correspondence and sought time for clearing the outstanding invoices.
The Operational Creditor thereafter issued a legal demand notice dated 12.09.2022, annexed as Annexure-E to the petition, calling upon the Corporate Debtor to clear the outstanding dues. The Operational Creditor states that despite the said notice, the Corporate Debtor neither cleared the outstanding amount nor raised any appropriate objection in respect thereof.
It is further stated that subsequent correspondence took place between the parties, wherein the Corporate Debtor again admitted its liability and assured payment. In particular, the Operational Creditor has relied upon email correspondence dated 10.10.2022 and 31.10.2022, annexed as Annexure-F to the Petition, wherein assurances regarding clearance of the outstanding amount were allegedly given.
Thereafter, the Operational Creditor issued the statutory Demand Notice dated 30.01.2023 under Section 8 of the Code, which was sent to the registered office of the Corporate Debtor by registered post and was also served by email dated 16.02.2023. While the postal notice was returned with the endorsement ‘Door Locked’, the email was successfully delivered.
The Operational Creditor has also placed on record its GST registration and relevant GST returns, copies of the invoices, correspondence evidencing the alleged acknowledgment of liability, computation of the debt and a certificate from its banker.
It is stated that the date from which the debt fell due is 17.05.2022 and that the total amount claimed to be in default is ₹1,05,99,599/-. The Operational Creditor has further stated that there is no pre-existing dispute between the parties and that the debt is within the period of limitation.
Despite due service of notice, including by substituted service, the Corporate Debtor failed to appear and was accordingly proceeded against ex parte vide order dated 30.04.2024.
Analysis and Findings
We have heard the learned counsel for the applicant and considered the pleadings, written submissions, and perused the material available on record carefully.
The Operational Creditor has filed the present Application under Section 9 of the Insolvency and Bankruptcy Code, 2016 seeking initiation of Corporate Insolvency Resolution Process against the Corporate Debtor for an operational debt of ₹1,05,99,599/-.
From the material on record, it is evident that the Corporate Debtor had approached the Operational Creditor for digital marketing and promotional services in respect of its mobile application “Bolo Live”. Pursuant thereto, an Insertion Order dated 21.02.2022 was entered into between the parties, under which the invoices raised for the services rendered were payable within 45 days from the date of raising of the respective invoices. The Operational Creditor states that the advertisement campaign was thereafter undertaken pursuant to the instructions and approvals of the Corporate Debtor and that the advertisement budget was scaled up with the approval of the Corporate Debtor.
The Operational Creditor has placed on record five unpaid invoices aggregating to ₹1,05,99,599/-. The invoices are stated to have been accepted by the Corporate Debtor without objection or protest. The dates of maturity of the respective invoices are 17.05.2022, 02.06.2022, 09.06.2022, 24.06.2022 and 08.07.2022. The Operational Creditor has further stated that the Corporate Debtor had made certain payments during the course of the transaction, including payments on 09.03.2022, 19.04.2022, 16.05.2022 and 14.07.2022.
The record further discloses that the outstanding dues were repeatedly communicated to the Corporate Debtor, which sought time for making payment. The Operational Creditor has relied upon email correspondence dated 06.07.2022, 30.08.2022, 10.10.2022 and 31.10.2022, wherein the Corporate Debtor assured clearance of the pending invoices. In particular, vide email dated 10.10.2022, the Corporate Debtor assured that the invoices would be cleared by 10.11.2022, while vide email dated 31.10.2022, it stated that it would shortly commence clearing the invoices. The aforesaid correspondence does not disclose any contemporaneous objection regarding the quality of services, quantum of invoices or contractual liability. For ready reference, the email dated 31.10.2022 is reproduced below:
Thereafter, the Operational Creditor issued the statutory Demand Notice dated 30.01.2023 under Section 8 of the Code, which was sent to the registered office of the Corporate Debtor by registered post and also served by email dated 16.02.2023. The postal article was returned with the endorsement “Door Locked”, and an affidavit of service was filed. Subsequently, notice of the Application was duly served pursuant to the orders of this Adjudicating Authority, including by substituted service through publication in “The Pioneer” and “Navodaya Times” on 27.02.2024. Despite such service, the Corporate Debtor failed to appear and was proceeded against ex parte vide order dated 30.04.2024. The Corporate Debtor has neither contested the claim nor placed on record any material evidencing a pre-existing dispute concerning the operational debt, invoices, quality of services or contractual obligations.
The Operational Creditor has also placed on record a certificate dated 27.04.2023 issued by ICICI Bank under Section 9(3)(c) of the Code, which records that the last payment of ₹5,80,000/- was received from the Corporate Debtor on 14.07.2022 and that no payment was received thereafter up to 20.04.2023.
In view of the above and relying on the principles laid down in Mobilox Innovations Pvt Ltd v. Kirusa Software Pvt Ltd, (2018) 1 SCC 353, wherein it is held that:
“19.On the expiry of the period of ten days from the date of receipt of the invoice or demand notice under Clause 8, if the operational creditor does not receive either the payment of the debt or a notice of existence of dispute in relation to the debt claim from the corporate debtor, he can file an application with the adjudicating authority for initiating the insolvency resolution process in respect of such debtor. He also has to furnish proof of default and proof of non-payment of the debt along with an affidavit verifying that there has been no notice regarding the existence of a dispute in relation to the debt claim. Within fourteen days from the receipt of the application, if the adjudicating authority/Tribunal is satisfied as to (a) the existence of a default, and (b) the other criteria laid down in clause 9(5) being met, it shall admit the application. The adjudicating authority/Tribunal is not required to look into any other criteria for admission of the application.”
We are of the considered view that the present Application satisfies the conditions specified under Section 9(5)(i) of the Code. The operational debt is above the statutory threshold, the default is clearly established, no pre-existing dispute has been brought on record, and the statutory notice under Section 8 has been duly issued. No IRP has been proposed by the Applicant.
In view of the facts, it is clear that the Respondent has defaulted in the payment of its debts. On the basis of the facts, we admit this application and order as under:
The Corporate Debtor – SynergyByte Infotainment Pvt. Ltd. is admitted in the Corporate Insolvency Resolution Process under Section 9 of the Insolvency and Bankruptcy Code, 2016.
The moratorium under section 14 of the Insolvency and Bankruptcy Code, 2016 is declared for prohibiting all of the following in terms of Section 14(1) of the Code.
“a. the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority;
b. transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein;
c. any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002;
d. the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor.”
The order of moratorium shall have effect from the date of this order till the completion of the Corporate Insolvency Resolution Process or until this Adjudicating Authority approves the Resolution Plan under sub-section (1) of Section 31 or passes an order for liquidation of Corporate Debtor Company under Section 33 of the IBC, 2016, as the case may be.
We appoint Ms. Pooja Gupta, having registration No. IBBI/IPA-001/IP-P-02937/2025-2026/14513,[email protected] m Mobile No.: 9872997454; to act as an IRP under Section 13(1)(c) of the Code, in respect of the CIRP of the corporate debtor. The IRP shall conduct the Corporate Insolvency Resolution Process of the corporate debtor as per the provisions of the Code, read with Regulations made thereunder.
The IRP so appointed shall make a public announcement of initiation of the Corporate Insolvency Resolution Process (CIRP) and call for submission of claims under Section 15 as required by Section 13(1) (b) of the Code.
The supply of essential goods or services to the Corporate Debtor, if continuing, shall not be terminated, suspended, or interrupted during the moratorium period. The corporate debtor to provide effective assistance to the IRP as and when he takes charge of the assets and management of the corporate debtor.
The IRP shall perform all functions as contemplated, inter alia, by sections 17, 18, 20 and 21 of the Code. It is further made clear that all personnel connected with Corporate Debtor, its Promoter or any other person associated with management of the Corporate Debtor are under legal obligation under Section 19 of the Code extending every assistance and co-operation to the Interim Resolution Professional. Where any personnel of the Corporate Debtor, its Promoter or any other person, is required to assist or co-operate with IRP, do not assist or Co-operate, the IRP is at liberty to make appropriate application to this Adjudicating Authority with a prayer for passing an appropriate order.
The IRP shall be under duty to protect and preserve the value of the property of the ‘Corporate Debtor Company’ and manage the operations of the Corporate Debtor Company as a going concern as a part of the obligation imposed by Section 20 of the Insolvency and Bankruptcy Code, 2016.
The Operational Creditor is directed to pay an advance of Rs. 4,00,000/-(Rupees Four Lacs only) to the IRP to meet out the initial CIRP cost within two weeks from the date of receipt of this order for smooth conduct of Corporate Insolvency Resolution Process (CIRP) and IRP to file proof of receipt of such amount to this Adjudicating Authority along with First Progress Report. Subsequently, the IRP may raise further demands for Interim funds, which shall be provided as per Rules.
The Registry is directed to communicate a copy of this order to the Operational Creditor, Corporate Debtor and to the Interim Resolution Professional and the concerned Registrar of Companies, within seven working days and upload the same on website immediately after pronouncement of the order.
The IRP shall also serve a copy of this order to various departments such as Income Tax, GST, State Trade Tax and Provident Fund etc. who are likely to have their claim against Corporate Debtor as well as to the trade unions/ employee’s associations so that they are timely informed about the initiation of CIRP against the corporate debtor.
The commencement of the Corporate Insolvency Resolution process shall be effective from the date of this order.
In result thereof, the Application bearing CP (IB) No. 154/Chd/Hry/2023 is allowed, and Corporate Debtor - SynergyByte Infotainment Pvt. Ltd. is admitted in the Corporate Insolvency Resolution Process.