TMI Blog2020 (6) TMI 709X X X X Extracts X X X X X X X X Extracts X X X X ..... mand raised. HELD THAT:- The total amount which is being claimed by the Operational Creditor is only with respect to demurrage charges. This, the Operational Creditor mentions, is derived from the Bond letter sent by the Corporate Debtor to the Operational Creditor on Judicial Stamp paper - This Bench takes into account the fact that the Corporate Debtor has always cleared it dues/ amount owed to the Petitioner well in time except the disputed claim relating to Demurrage charges which is not enforceable, as the Bond document on the basis of which the Corporate debtor lays its claim on the purported demurrages, is a dead instrument as it never became effective in the absence of any mutually agreed date of implementation. The Bench bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cess (CIRP). 2. The Petitioner is a Private Limited Company registered under the Companies Act, 1956. This Petition is filed by Mr. Sujeet Kumar Chaudhary, Finance Head of the LCL Logistixs India Pvt. Ltd. duly authorized to file the present Petition. 3. The Petitioner has claimed an amount of ₹ 1,76,91,451/- with interest from the Corporate Debtor. The claim of the Petitioner is based upon the Freight Forwarding Agreement. A copy of the said Freight Forwarding Agreement dated 07.12.2016 is annexed to the Application. 4. COMPUTATION OF AMOUNTS IN TABULAR FORM: PARTICULARS AMOUNT(INR) Principal amount outstanding and due to operational creditor under total 176 invoices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner, the container incurred detention and demurrage charges. e. The Petitioner submits that for the services rendered and availed the Corporate Debtor is required to pay import CFS charges/import detention charges, import transport charges, ocean freight etc., the terms of the agreement provide that the Corporate Debtor will pay Container Detention Charges and other charges. f. The Petitioner raised various invoices on the Corporate Debtor the same is accepted by the Corporate Debtor g. The Petitioner received the payments in respect of the Freight invoices, but no payment is received by the Petitioner in respect of pending invoices which pertain to demurrage and detention charges. 6. The Petitioner sent the statutory demand not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rman and managing director of the Corporate Debtor company dated 09.03.2018. The relevant excerpt of the same is extracted below: Your email is really surprise to us which is not as per our discussion there is no outstanding regarding the demerges charges charged by you through separate invoice which we have explained are not due to WAAREE fault and this is reason they have been not accepted by us so far neither accounted. In fact, due to this issue has lost huge amount including GST and PPA, and still out customer is holding over 22 crores payment of WAAREE Therefore, the corporate debtor says it has disputed the liability to pay the amount sought by the Petitioner. 10. The Corporate Debtor mentions that the Petitioner has faile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat parties are at variance inter alia in respect of the period for which said charges are to be levied. Further it is submitted that the Petitioner had never communicated to the Corporate Debtor the fact regarding levy of such detention charges, prior to raising invoices in this regard. It is normal industry practice for parties to arrive at an agreement before levying such charges. Findings: 13. It is beneficial to refer the email sent by the Petitioner on 09.03.2018 wherein it is stated as below: 14. The above email which are prior to the issue of demand notice clearly shows that there is a dispute with regard to the amount claimed and the same is covered under Section 5(6) of the Code which reads as below: 5(6) dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lauses in the Bond document cannot be said to be mutually agreed Bond document. Therefore, the Petitioner cannot claim demurrage charges based on the clauses in the Bond, which does not have an effective date of implementation. 17. This Bench takes into account the fact that the Corporate Debtor has always cleared it dues/ amount owed to the Petitioner well in time except the disputed claim relating to Demurrage charges which is not enforceable, as the Bond document on the basis of which the Corporate debtor lays its claim on the purported demurrages, is a dead instrument as it never became effective in the absence of any mutually agreed date of implementation. 18. The Bench based on the facts presented before it by both the Parties c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
