Sanjay Kishan Kaul JUDGMENT
Rohinton Fali Nariman, J.
1. The present appeal raises questions as to the triggering of the Insolvency and Bankruptcy Code, 2016 when it comes to operational debts owed to operational creditors. The Appellant was engaged by Star TV for conducting tele-voting for the "Nach Baliye" program on Star TV. The Appellant in turn subcontracted the work to the Respondent and issued purchase orders between October and December, 2013 in favour of the Respondent. In the "Nach Baliye" program, the successful dancer was to be selected on various bases, including viewers' votes. For this purpose, the Respondent was to provide toll free telephone numbers across India, through which the viewers of the program could cast their votes in favour of one or more participants. For this purpose, a software was customized by the Respondent, who then coordinated the results and provided them to the Appellant. Since the Respondent obtained toll free numbers from telephone operators in terms of the purchase orders, the Appellant was liable to make payment of rentals for the toll free numbers, as well as primary rate interface rental to the telecom operators. The Respondent provided the requisite services and raised monthly invoices between December, 2013 and November, 2014 - the invoices were payable within 30 days from the date on which they were received. The Respondent followed up with the Appellant for payment of pending invoices through e-mails sent between April and October, 2014. It is also important to note that a non-disclosure agreement (hereinafter referred to as the NDA) was executed between the parties on 26th December, 2014 with effect from 1st November, 2013.
2. More than a month after execution of the aforesaid agreement, the Appellant, on 30th January, 2015, wrote to the Respondent that they were withholding payments against invoices raised by the Respondent, as the Respondent had disclosed on their webpage that they had worked for the "Nach Baliye" program run by Star TV, and had thus breached the NDA. The correspondence between the parties finally culminated in a notice dated 12th December, 2016 sent Under Section 271 of the Companies Act, 2013. Presumably because winding up on the ground of being unable to pay one's debts was no longer a ground to wind up a company under the said Act, a demand notice dated 23rd December, 2016 was sent for a total of Rs. 20,08,202.55 Under Section 8 of the new Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the Code). By an e-mail dated 27th December, 2016, the Appellant responded to the aforesaid notice stating that there exists serious and bona fide disputes between the parties, that the notice issued was a pressure tactic, and that nothing was payable inasmuch as the Respondent had been told way back on 30th January, 2015 that no amount will be paid to the Respondent since it had breached the NDA.
3. An application was then filed on 30th December, 2016 before the National Company Law Tribunal Under Sections 8 and 9 of the new Code stating that an operational debt of Rs. 20,08,202.55 was owed to the Respondent.
4. On 19th January, 2017, the Respondent was orally intimated to remove a defect in the applicat........