TMI Blog2019 (9) TMI 963X X X X Extracts X X X X X X X X Extracts X X X X ..... the liability. The documents on record clearly show that the dispute was raised by the respondent prior to the demand notice issued under Section 8 (1) of the Code. Section 9 (5) of the Code provides that adjudicating authority shall reject the application if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility - this application fails and the same is hereby rejected and dismissed. - Company Petition No. IB- 1462/ND/2018 - - - Dated:- 8-5-2019 - DR. DEEPTI MUKESH, MEMBER (Judicial) For The Applicant : Ms. Nimita Kaul, Adv. Ms. Amrita Sarkar, Adv. And Mr. Sayan, Adv. For The Respondent : Mr. Ashim Sood, Adv. And Mr. Aditya Kumar, Adv. ORDER 1. The present application is filed under Section 9 of Insolvency and Bankruptcy Code, 2016 (for brevity IBC, 2016 ) read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity the Rules ) by M/s Starlog Enterprises Limited (for brevity Operational Creditor ) through its authorized representative Mr. Rajnish Shukla ,who is duly authoriz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kms). Clause 11 : All insurance i.e. Crane insurance policy, Workmen compensation policy, Product liability policy and others in any shall be in Operational Creditor s scope. Clause 12: Rental will be paid based on the daily log sheet duly signed by Corporate debtor s supervisor. Clause 23 : The transport responsibility in Operational Creditor s scope, Corporate Debtor will arrange to provide the documents, check post/ RTO are responsibility of transporter. 9. The Corporate Debtor had hired the services of the transporter Pali Translines Pvt. Ltd. for the purposes of transportation of the crane from NTPC site to Nabinagar, Bihar. On 15.08.2017, the trailer carrying the cabin/car body of the Crane met with an accident at Kautti Kodarma JH, Madhya Pradesh resulting in toppling of the cabin/ car body of Crane and severely damaging the same. In addition to this, some of the other trailers carrying other parts of Crane stationed at the NTPC site also met with an accident. Consequently, an engineering company, Mcnally Bharat Engineering Company, working at the NTPC Site is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed parts of Crane and second notice dated 07.09.2018 was regarding the payment of damages caused due to the accident at the NTPC site amounting to ₹ 1,30,000/-. 16. The Corporate Debtor vide its email dated 06.09.2018 and 18.09.2018 disapproved the replacement and return of the damaged Crane and the loss suffered by the Operational Creditor due to the loss of business opportunities owing to stationing of Crane sent for lifting the damaged crane parts. The Operational Creditor has issued the demand notice dated 21.09.2018 under Section 8 of the Code, raising its demand for payment for an amount of ₹ 4,16,68,035/- along with 18% interest. 17. The Corporate Debtor vide its letter dated 29.09.2018 replied to the said demand notice dated 21.09.2018 issued under Section 8 of the Insolvency and Bankruptcy Code, 2016 and disputed the amount claimed by the applicant. 18. The applicant has stated that total debt due and payable by the Respondent to the applicant is ₹ 4,16,68,035/- (Rupees Four Crores Sixteen Lakhs Sixty- Eight Thousand and Thirty -five only) being monthly hire charges for 12 months amounting to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal debt . So also, is the interest claimed on it. 23. A rejoinder to the reply has been filed by the Operational Creditor reiterating the submissions made in the application and controverting the assertions in the reply. 24. The basic question arises is that, whether the Operational Creditor proved that the claim made by them is covered under the category of Operational debt as defined under Section 5 (21) of the Code,2016 as: A claim in respect of the provisions of goods or services including employment or debt in respect of the payment of dues arising under any law for time being in force and payable to the Central Government any State Government or any Local Authority . Nowhere in the application any document has been produced to support that the alleged Work Order has been completed and the payment towards the same has become due and is unpaid as claimed by the applicant in part IV of Form No. 5. The claim made by the applicant in Form 5 titled as Repair/ Renovation/ refurbishment charges of the Crane, Monthly Hire charges as per standard rentals and Revenue loss to the operational creditor cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporate Debtor, it can be inferred concluded that the dispute raised by the corporate debtor falls well within the definition of dispute as reproduced above. 27. It is further seen that the demand notice in the present case was issued under Section 8 (1) of the Code on 21.09.2018. Respondents have placed their earlier correspondences dated 26.12.2017, 10.08.2018, 06.09.2018 and 18.09.2018 raising dispute and issues with respect to delivery and performance of contract. It is thus seen that the dispute was brought to the notice of the applicant prior to the issuance of the demand notice dated 21.09.2018 issued under Section 8 (1) of the Code. 28. In an application filed under Section 9 of the Code, Tribunal is not supposed to examine the merits of the dispute nor the adequacy of the dispute is to be seen. However, in matters under Section 9, the tribunal is only to see that a dispute pre-exists and that the dispute is not vague, got up or raised for the first time to evade the liability. The documents on record clearly show that the dispute was raised by the respondent prior to the demand notice issued under Section 8 (1) of the Code. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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