TMI Blog2020 (10) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... l by the OC due to fall of prices cannot be ruled out, since the advocate appearing for the applicant during the course of argument refused to accept coal when asked by this Tribunal as to why can't they resolve the issue by accepting coal from the CD as the CD expressed his ready and willingness to supply the coal. The OC did not place any material before this Tribunal to prove the alleged assertion by way of written concluding contract between the parties - It also transpires from the reply and the conduct that the OC is not inclined to accept the material due to obvious reasons. All the above allegations and counter allegations clearly proves a pre-existing dispute between the parties. In this case, the demand notice was dispatche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) plus 5% GST plus 1% TCS to the OC within Sixty days from the arrival date from Vessel MV Salt Lake City and the payment was to be made in advance i.e. within Forty Five days from arrival of the vessel. 3. The OC made advance payment as demanded by the CD and also advanced a security deposit of ₹ 80,00,000/- (Rupees Eighty lacs only) within 01.03.2019 to the CD. The OC also paid an amount of ₹ 40.00,000/- (Rupees Forty lacs only) on 28.02.2019. an amount of ₹ 40,00,000/- (Rupees Forty lacs only) on 01.03.2019, an amount of ₹ 50.00,000/- (Rupees Fifty lacs only) on 06.03.2019 and another amount of ₹ 45,00,000 (Rupees Forty Five lacs only) on 07.03.2019 as an advance amount to the CD as evident from the accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03.2019 and, therefore, the above Company Petition is not maintainable in view of the financial solvency of the CD No. 1. The CD also disputing the assertion of the OC with regard to supply of coal from a particular vessel and also disputing the assertion of timely payment of the OC as per the terms conditions of the agreement. It is also the contention of the CD that the OC willfully refused to accept delivery of coal on account of reduction of coal prices as a result of which the CD sustained loss. 5. In the light of the above pleadings on both sides, the issue that falls for consideration is-- Whether the above issues raised by the CD would amount to an existing dispute? And whether the above application is maintainable? 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hase and supply of coal and the OC refused to accept the coal supplied by the CD both on the ground of inferior quality and also in not supplying the coal through a particular vessel by name MV Salt Lake City. It also appears that the prices of coal have been dropped after making payment by the OC to the CD at a particular price. The possibility of refusal of acceptance of coal by the OC due to fall of prices cannot be ruled out, since the advocate appearing for the applicant during the course of argument refused to accept coal when asked by this Tribunal as to why can't they resolve the issue by accepting coal from the CD as the CD expressed his ready and willingness to supply the coal. The OC did not place any material before this Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting Authority in dismissing the above company application. However, in this case, the demand notice was dispatched on 01.06.2019 at 12.24 Noon as per the postal receipts placed by the OC and the CD is expected to receive it at least two/three days thereafter. In the meanwhile, the CD has sent an email to the OC on 31.05.2019 at 15.55 PM alleging so many breaches on the part of the OC which proves the pre-existing disputes between the parties with regard to enforcement of the terms conditions of the contract. Therefore, this Tribunal is of the considered opinion that this is not a fit case where Section 9 of the IBC can be triggered in the above facts and circumstances and the above Company Petition is liable to be dismissed. 10. Accor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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