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Judgment
The Company Petition bearing CP No. 23/9/JPR/2023 has been filed by Radiant Digitek Network Limited ('Operational Creditor'/ 'Petitioner') against the Respondent, namely, M/s Bhoomika Media Initiative Private Limited ('Corporate Debtor'/ 'Respondent') under section 9 of the Insolvency and Bankruptcy Code, 2016 ('IBC'/ 'Code') read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 seeking initiation of the Corporate Insolvency Resolution Process ('CIRP') of the Corporate Debtor on account of default in repayment of the operational debt of Rs. 2,90,56,000/- (Rupees Two Crore Ninety Lakhs Fifty-Six Thousand Only).
The Respondent is a Private Limited Company incorporated on 01.05.2012 and duly registered with the Registrar of Companies, Jaipur, having Identification No. U22130RJ2012PTC038755. The registered office of the Corporate Debtor is situated at 13, Motilal Atal Road, Chokdi Haweli, behind Ganpati Plaza, M.I. Road, Jaipur, Rajasthan- 302001. The authorized share capital of the Respondent is Rs. 9,50,00,000/- (Rupees Nine Crores Fifty Lakhs Only) and the paid-up share capital is Rs. 9,29,07,380/- (Rupees Nine Crores Twenty-Nine Lakhs Seven Thousand Three Hundred and Eighty Only). The same has been verified from the online database maintained by the Ministry of Corporate Affairs.
The details of the transactions leading to the filing of the Company Petition bearing CP No. (IB)- 23/9/JPR/2023 as averred by the Petitioner are as follows:
The Operational Creditor is in the business of providing accessible distribution of cable TV signals all over Rajasthan. The Corporate Debtor availed the services of the Operational Creditor for making its channel namely, A1TV, available to the viewers via DTH network or cable network. For the services availed by the Corporate Debtor, it was required to pay the channel placement charges to the Operational Creditor.
In relation to the services provided by the Operational Creditor to the Corporate Debtor, it raised invoices from time to time. Further, the Corporate Debtor had duly deducted TDS on the said invoices raised by the Operational Creditor. It was submitted that the Corporate Debtor used to make lump sum payments instead of bill-to-bill payments from time to time. However, after some time, despite repeated requests of the Operational Creditor, the Corporate Debtor had not released any payment and the last payment was made on 04.04.2022 for a sum of Rs. 3,00,000/- (Rupees Three Lakh Only) and TDS was duly deducted on the bills by the Corporate Debtor.
After the aforementioned payment, the Corporate Debtor has not made any payment to the Operational Creditor resulting in an operational debt of Rs. 2,90,56,000 (Rupees Two Crores Ninety Lakh Fifty-Six Thousand Only) up to 31.03.2023. Further, due to the accumulation of the aforementioned debt, the Operational Creditor had stopped the services to the Corporate Debtor after due intimation. 3.4 It was submitted that the Operational Creditor sent emails dated 02.01.2023 and 04.01.2023 to the Corporate Debtor seeking payment of the Operational Debt and the said emails were accompanied by statement of accounts of the Corporate Debtor in the books of the Operational Creditor. The aforementioned emails were replied by the Corporate Debtor vide its email dated 23.01.2023 stating that the bills for the F.Y. 2017-18 have not been received by it and all the remaining bills are duly accounted for. In its reply, the Corporate Debtor had acknowledged that a sum of Rs. 2,90,56,000/- (Rupees Two Crores Ninety Lakhs Fifty-Six Thousand only) is due to the Operational Creditor as on 31.03.2022 in the books of the Corporate Debtor.
Due to the failure of the Corporate Debtor to pay the outstanding sum, the Operational Creditor sent a demand notice dated 31.03.2023 in Form 3 under Section 8 of the Code and the relevant rules thereunder. Despite the demand notice dated 31.03.2023, the Corporate Debtor has not paid the outstanding amount and hence, the instant Petition has been filed by the Operational Creditor seeking initiation of the CIRP. The relevant details as enumerated under Part IV of the instant Petition are reproduced hereunder:
Part IV
PARTICULARS OF OPERATIONAL DEBT
1. Total Amount of Debt, Details of Transactions on Account of which Debt fell Due, And the date from which such debt fell due 1. Total amount of debt is INR Rs. 2,90,56,000/- (Rupees Two Crore Ninety Lac Fifty Six Thousand Only). The debt fell due on account of Channel Placement Charges. 3. That in relation to the services provided various invoices were raised by the operational creditor from time to time till the last invoice raised for the period upto 31.03.2022. 4. First date from which debt fell due 30/03/2020 onwards as all subsequent Invoices remained outstanding. The last payment was received on 04.04.2022. 5. The first date from which debt fell due has been taken as the earliest bill which remained due in part as on date after adjustment of payments received being made on first adjusted against first bill Sef
| due. | ||
| 2. | Amount claimed to be in default and the date on which the default occurred (Attach the working for computation of amount and days of default in tabular form) | Total amount of debt is INR Rs. 2,90,56,000/- which became due from 30.03.2020 onwards. The payments were not made on invoice to invoice basis but the payments were made in fraction of small payments hence annexure attached as Annexure-5 shows adjustment of payment on the basis of first in first bill, the last bill raised was on 21.03.2022. |
The Respondent had filed its Reply to the Application vide Diary No. 315/2024 dated 02.02.2024 wherein it raised the following contentions: -
The Respondent contended that the present Petition is not maintainable as the same has been filed with the intention of recovering the alleged amount instead of resolution of the Corporate Debtor. 4.2 It was contended that both the parties to the Petition are governed by Telecom Regulatory Authority of India Act, 1997 ('TRAI Act'). As per Section 14 of the TRAI Act, all the disputes between the service providers under the Act are to be entertained by the Telecom Dispute Settlement and Appellate Tribunal. Further, Section 15 of the TRAI Act bars the jurisdiction of any other court in matters pertaining to Section 14 of the Act. Since, the instant Petition has been filed on account of default in payment of channel placement charges and carriage fees, the instant Petition is not maintainable.
The Respondent submitted that there is no existing debt as alleged in the Petition. It was contended that the rate of the channel placement charges is not unequivocally stated in the Petition and the same are regulated by the Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations, 2017. Therefore, there exists a dispute over the charged rate of carriage fees as it is contrary to the Regulations of 2017. It was further stated that as per the Regulations of 2017, there has to be a written interconnection agreement between the parties and in the absence of the same the Petitioner does not have any cause of action against the Respondent.
The Petitioner has filed Rejoinder to the Reply vide Diary No. 920/2024 dated 16.04.2024 wherein it was contended that as per Section 238 of the Code, the provisions of the Code shall have effect notwithstanding anything inconsistent therewith contained in any other law. Further, it was submitted that the Operational Creditor had duly raised the invoices from time to time and there exists no prior dispute between the parties qua the same. The Operational Creditor also relied upon the TDS deductions and the GST credits availed by the Corporate Debtor to contend that there is no pre-existing dispute between the parties.
The Operational Creditor has filed the Written Submissions vide Diary No. 1130/2025 dated 21.05.2025 wherein it has reiterated the submissions made in the Petition and placed reliance upon the Judgment of the Hon’ble NCLAT in the case of Telecom Regulatory Authority of India v/s Reliance Telecom Ltd. & Ors. Company Appeal (AT) (Insolvency) No. 273 of 2024.
The Respondent has filed Written Submissions vide Diary No. 1141/2025 dated 21.05.2025 wherein the Respondent has reiterated the submissions made in the Reply and placed reliance upon the following Judgments: -
Municipal Corporate of Greater Mumbai vs. Abhilash Lal & Ors. AIRONLINE 2019 SC 1570
IFB Agro Industries Limited vs. SICGIL India Limited & Ors. Civil Appeal No. 2030 of 2019
We have heard the Ld. Counsels for the parties and perused the averments made in the Petition, Reply, Rejoinder, and the Written Submissions along with the documents enclosed therein.
Prior to entering into the merits of the case, it is incumbent to deal with the preliminary objection raised by the Corporate Debtor. In its reply, the Corporate Debtor has contended that it is governed by the Telecom Regulatory Authority of India Act, 1997 and all the disputes between the service providers are to be entertained by Telecom Dispute Settlement and Appellate Tribunal under the TRAI Act. Therefore, this Adjudicating Authority does not have the requisite jurisdiction to entertain the instant Petition.
To deal with the preliminary objection of the Corporate Debtor, it is pertinent to refer to the Judgment of the Hon’ble NCLAT in the case of Telecom Regulatory Authority of India v/s Reliance Telecom Ltd. & Ors Company Appeal (AT) (Insolvency) No. 273 of 2024 wherein it was observed that: -
“14.Now, we come to the submissions, which have been pressed by the Appellant, challenging the decision of the Adjudicating Authority. One of the submission advanced by learned Counsel for the Appellant is that TRAI Act is a special law governing all aspects of the provisions of telecommunications service in the country, whereas the IBC is a general law governing insolvency, hence the provisions of TRAI Act would prevail in respect of matters dealing with the Regulations of the telecom companies. The IBC is a special law and latter enactment than to the TRAI Act, which was enacted in 1997, whereas IBC has been enacted in 2016. Section 238 of the IBC gives overriding effect Company Appeal (AT) (Insolvency) Nos. 273 & 355 of 2024 14 to the provisions of the IBC to all other laws. Section 238 of the IBC is as follows:
“238.Provisions of this Code to override other laws. - The provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law.”
15.Learned Counsel for the Respondent has relied on the judgment of the Hon’ble Supreme Court in A. Navinchandra Steels Pvt. Ltd. vs. SREI Equipment Finance Ltd. & ors. - Civil Appeal Nos.4230-4234 of 2020 decided on 01.03.2020. The Hon’ble Supreme Court in paragraph 14 of the judgment has held that IBC is a special statute, which must prevail in the event of conflict, but has a non-obstante clause contained in Section 238. Paragraph 14 of the judgment of the Hon'ble Supreme Court is as follows:
"14.Having heard learned counsel for all the parties, it is important to restate a few fundamentals. Given the object of the IBC as delineated in paragraphs 25 to 28 of Swiss Ribbons (P) Ltd. v. Union of India, (2019) 4 SCC 17 ["Swiss Ribbons"], it is clear that the IBC is a special statute dealing with revival of companies that are in the red, winding up only being resorted to in case all attempts of revival fail. Vis-à-vis the Companies Act, which is a general statute dealing with companies, including companies that are in the red, the IBC is not only a special statute which must prevail in the event of conflict, but has a non-obstante clause contained in Section 238, which makes it even clearer that in case of conflict, the provisions of the IBC will prevail."
16.In view of the clear pronouncement of the above law, submission of the Appellant that TRAI Act is a special statute and would prevail over the IBC, has to be rejected."
Thus, in view of the aforementioned judgment and the fact that there is no existing bar under the code in proceeding against a company which is governed by the TRAI Act, we do not find any force in the argument of the Corporate Debtor that this Adjudicating Authority does not have the jurisdiction to entertain the present Petition.
At this juncture, it becomes relevant to refer to the statutory framework regarding the Petition under Section 9 of the Code. A Petition under Section 9 of the Code can only be filed after the delivery of a demand notice as provided under Section 8 of the Code. Section 8 of the Code requires the Operational Creditor, upon the occurrence of default, to deliver a Demand Notice for unpaid Operational Debt. Furthermore, Section 8(2) specifies that the Corporate Debtor must, within 10 days of receiving the Demand Notice, inform the Operational Creditor of any existing dispute.
Under Section 9(1), if Operational Creditor does not receive payment from the Corporate Debtor or notice of the dispute under Sub-section (2) of Section 8, may file an Application under Section 9(1) of the Code. Section 9(1) is as follows:
"Section 9: Application for initiation of corporate insolvency resolution process by operational creditor.- (1) After the expiry of the period of ten days from the date of delivery of the notice or invoice demanding payment under sub-section (1) of section 8, if the operational creditor does not receive payment from the corporate debtor or notice of the dispute under sub-section (2) of section 8, the operational creditor may file an application before the Adjudicating Authority for initiating a corporate insolvency resolution process."
Section 9(5)(ii) is as follows:
"(5)The Adjudicating Authority shall, within fourteen days of the receipt of the application under subsection (2), by an order—
(i)...
(ii)reject the application and communicate such decision to the operational creditor and the corporate debtor, if—
(a)the application made under sub-section (2) is incomplete;
(b)there has been [payment] of the unpaid operational debt;
(c)the creditor has not delivered the invoice or notice for payment to the corporate debtor;
(d)notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility; or
(e)any disciplinary proceeding is pending against any proposed resolution professional:
Provided that Adjudicating Authority, shall before rejecting an application under sub-clause (a) of clause (ii) give a notice to the applicant to rectify the defect in his application within seven days(i) of the date of receipt of such notice from the adjudicating Authority."
In the present case, the Operational Creditor is engaged in the business of providing accessible distribution of cable tv signals all over Rajasthan. Further, the Corporate Debtor availed the services of the Operational Creditor for making its channel namely, A1TV, available to the viewers. In respect of the services availed by the Corporate Debtor, the Operational Creditor issued several invoices to the Corporate Debtor. Apropos the invoices totaling to a sum of Rs. 5,55,86,000/- (Rupees Five Crores Fifty-Five Lakhs Eighty-Six Thousand Only), the Corporate Debtor has paid a sum of Rs. 1,88,60,000/- (Rupees One Crore Eighty-Eight Lakh Sixty Thousand Only). Further, the Corporate Debtor made the last payment to the tune of Rs. 3,00,000/- (Rupees Three Lakhs Only) on 04.04.2022. Thereafter, the Corporate Debtor has not made any payment to the Operational Creditor. The Copy of the invoices raised by the Operational Creditor are on record.
Thus, the net amount due from the Corporate Debtor as per the accounts of the Operational Creditor was Rs. 3,67,26,000/- (Rupees Three Crores Sixty-Seven Lakhs Twenty-Six Thousand Only). In this regard, the Operational Creditor sent an email dated 02.01.2023 to the Corporate Debtor stating that the sum of Rs. 3,67,26,000/- (Rupees Three Crores Sixty-Seven Lakhs Twenty-Six Thousand Only) has remained outstanding for more than 90 days. In response to the aforementioned email, the Corporate Debtor sent a reply dated 23.01.2023 stating that only a sum of Rs. 2,90,56,000/- (Rupees Two Crores Ninety Lakh Fifty-Six Thousand Only) is due to the Operational Creditor, thereby acknowledging its liability. The relevant extract of the email dated 23.01.2023 sent by the Corporate Debtor to the Operational Creditor is reproduced hereunder: -
"As per our SOA outstanding amount is Rs 2,90,56,000/- till 31/03/2022. One invoice was not received but you booked in your SOA (from 1.4.2017 to 31.3.2018) so this is a difference."
Thereafter, due to subsisting non-payment of the invoices, the Operational Creditor sent a demand notice dated 31.03.2023 under Section 8 of the Code for a sum of Rs. 2,90,56,000/- (Rupees Two Crores Ninety Lakh Fifty-Six Thousand Only). It is pertinent to note that neither the Corporate Debtor replied to the said notice nor paid the dues.
At this juncture, it is germane to refer the Judgement of the Hon'ble Apex Court in Mobilox Innovations Private Limited Vs Kirusa Software Private Limited wherein in para 34 the Hon'ble Supreme Court laid down the guidelines for adjudicating Section 9 Application. Para 34 is as follows: -
"34.Therefore, the adjudicating authority, when examining an application under Section 9 of the Act will have to determine:
(i)Whether there is an "operational debt" as defined exceeding Rs 1 lakh? (See Section 4 of the Act)
(ii)Whether the documentary evidence furnished with the Application shows that the aforesaid Debt is due and payable and has not yet been paid? and
(iii)Whether there is existence of a dispute between the parties or the record of the 15 Company Appeal (AT) (Insolvency) No. 256 of 2021 pendency of a suit or arbitration proceeding filed before the receipt of the demand notice of the unpaid operational Debt in relation to such dispute?
If any one of the aforesaid conditions is lacking, the Application would have to be rejected. Apart from the above, the adjudicating authority must follow the mandate of Section 9, as outlined above, and in particular the mandate of Section 9(5) of the Act, and admit or reject the Application, as the case may be, depending upon the factors mentioned in Section 9(5) of the Act.”
Further, it is no more res-integra that for non-admission of a Section 9 Application, the existence of a dispute must be plausible, and it must not appear as a moonshine defence.
In the instant case, the Corporate Debtor in its Reply has raised the contention that there exists a dispute concerning the charges towards carriage fees. On perusal of the record, it transpires that no such objection was ever raised by the Corporate Debtor prior to filing of this Petition. Further, the Corporate Debtor in its email dated 23.01.2023 had already admitted its liability and the same is also supported by the tax deductions made by the Corporate Debtor as reflected in Form 26 AS. Moreover, in so far as the contention towards legality of the interconnection agreement is concerned, we are of the opinion that the proceedings under the Code are summary in nature and the said contention cannot be looked at while adjudicating upon a Petition under Section 9 of the Code. Besides, we cannot lose sight of the fact that no such objection was ever raised prior to initiation of the current proceedings.
In view of the observations made above, we are of the opinion that there is no pre-existing dispute between the parties. Further, in the present Petition, the elements of debt and default stand established. Thus, we are of the view that in the present matter, all the ingredients laid out under Section 9 are fulfilled. Therefore, we are inclined to initiate CIRP of the Corporate Debtor i.e., M/s Bhoomika Media Initiative Private Limited.
Further, we hereby appoint Ms. Aparna Bhardwaj having registration no. IBBI/IPA-001/IP-P-02311/2021-2022/13568 as Interim Resolution Professional of the Corporate Debtor from the available list of panel of Resolution Professionals as maintained by IBBI to conduct the Insolvency Resolution Process as mentioned under the Insolvency and Bankruptcy Code, 2016. The email address of the IRP is '[email protected]'.
The IRP is directed to take all such steps as are required under the statute, inter-alia in terms of Sections 15, 17, 18, 19, 20 and 21 of the Code and transact proceedings with utmost dedication, honesty and strictly in accordance with the provisions of the Code, and Rules and Regulations thereunder. It is directed to the Interim Resolution Professional /Resolution Professional to check the genuineness of the claim while admitting the operational dues of the Applicant.
Consequences of initiation of CIRP shall be inter-alia as follows:
The IRP appointed by the Adjudicating Authority is directed to take over the affairs of the Corporate Debtor and duties as required to be performed by her under the provisions of Code including issue of publication in widely circulated Newspapers as contemplated under the provisions of the Code and calling for claims from the creditors of the Corporate Debtor; and collation of the same. 23.2. Further, as a sequel of admission, moratorium as envisaged under Section 14 of the Code is invoked in relation to the Corporate Debtor which will be in vogue during the CIRP of the Corporate to Debtor. The IRP shall carry out CIRP strictly as per the timelines specified and as envisaged under the provisions of the Code in relation to the Corporate Debtor. 23.3. The said IRP shall act strictly in accordance with the provisions of the Code. This Bench also directs for an advance payment of Rs. 1,00,000/- (Rupees One Lakh only) to be paid by the Petitioner to the Interim Resolution Professional immediately to initiate the process which shall be adjusted towards the expenses payable towards CIRP Cost. In terms of Section 17 and 19 of the Code all personnel of the Corporate Debtor including promoters and Board of Directors, whose powers shall stand suspended, shall extend all cooperation to the IRP during his tenure as such and the management of the affairs of the Corporate Debtor shall vest with the IRP.
In terms of Section 9 of the Code, this order shall be communicated at the earliest, not exceeding one week from today, to the Petitioner, the Corporate Debtor as well as the IRP appointed by this Adjudicating Authority to carry out CIRP. A copy of this order shall also be communicated to IBBI for its records.
Accordingly, CP No. (IB)-23/9/JPR/2023 is admitted.
The Registry is directed immediately to send a soft copy of the instant Petition along with this order to the parties along with the IRP appointed herein.