TMI Blog2019 (9) TMI 964X X X X Extracts X X X X X X X X Extracts X X X X ..... Sea Pvt Ltd, the Corporate Debtor is rejected. - CP(IB) 2293(MB)/2018 - - - Dated:- 7-6-2019 - Shri V. P. Singh, Member (Judicial) And Shri Ravikumar Duraisamy, Member (Technical) For The Petitioner : Shri S.K. Jain, PCS For The Respondent : Advocate Prachi Wazalwar ORDER Per V. P. Singh, Member (Judicial) 1. This Company petition has been filed by Supreme Transport Organisation Pvt Ltd, the Operational Creditor under Section 9 of the Insolvency and Bankruptcy Code, 2016 ( I B Code ) for initiation of Corporate Insolvency Resolution Process ( CIRP ) against DSV Air Sea Pvt Ltd, the Corporate Debtor, on the ground, that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r s client had called special engineers from Italy to install the machinery parts on the days on which the cargo was agreed to be delivered. IT was explicitly understood and agreed between the parties that time was of the essence and that cargo was to be delivered to the Corporate Debtor s client within the strictly prescribed timeline, failing which all idling costs and losses would be deductible from any payment due. However, due to the Operational Creditor s breach of the agreed terms, the cargo was delivered extremely late and in breach of the agreed terms. 6. It is further contended by the Corporate Debtor that Operational Creditor lost the cargo and was unable to trace its truck drivers who were carrying the cargo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... go was to be delivered to the Corporate Debtor s client within the strictly prescribed timeline, failing which, all idling costs and losses would be deductible from any payment due. However, due to the Operational Creditor s breach of the agreed terms, the cargo was delivered extremely late and in breach of the agreed terms. Further, the said issue was raised by the Corporate Debtor promptly. The Corporate Debtor has annexed certain email communications with the Operational Creditor raising the dispute. 9. We have heard the arguments and perused the records. On perusal of the records, it is observed that there was a pre-existing dispute which was brought to the notice of the Operational Creditor before the receipt of the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on ble Supreme Court in Mobilox Innovations Private Limited vs Kirusa Software Private Limited, (AIR 2017 SC 4532) , where it was held as follows: It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application Under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the existence of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X
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