TMI Blog2020 (1) TMI 1265X X X X Extracts X X X X X X X X Extracts X X X X ..... and their representative Mr. Parvinder Singh Chandu at Dubai. Further, the counsel for the Corporate Debtor claimed that the minutes of the meeting dated 19.08.2016, signed by the parties is a clear admission of the preexisting disputes between the parties, the minutes further recorded several issues relating to quantification of rates with reference to idle time/operational day rate, payments of monies to marine crew, cost of fuel, cost of repairing and commissioning and diving system which demonstrates a clear dispute between parties. It can be said that there is a pre-existing dispute pending between the parties - petition dismissed. - C. P. No. 421/I&B/2018 - - - Dated:- 2-1-2020 - Suchitra Kanuparthi , Member ( J ) And V. Nallasenapathy , Member ( T ) For the Appellant : Nahar Mahala, Kunal Kriplani and Yunus Valeharia, Advs For the Respondents : Abhimanyu Singh and Priyanka Patel, Advs ORDER Suchitra Kanuparthi, Member (J) 1. This company Petition is filed by Maxsun Marine Services FZE (hereinafter called Petitioner ) seeking to set in motion the Corporate Insolvency Resolution Process (CIRP) against Dolphin Offshore Enterprises (India) Limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the delivery of the vessel got delayed. Accordingly, another Addendum-II dated 21.04.2016 was entered into between the parties wherein Petitioner certified that the vessel was ready to be delivered as all the repairs and compliances were completed. The date of delivery was changed to 25.03.2016 39 days and accordingly the cancellation date was changed. It was further stated in the Addendum that Petitioner had encashed the letter of credit amounting to US$ 200,00/- Copy of the Addendum-II is annexed hereto as annexure G. 7. Due to the change in the terms and conditions of certain services to be provided in respect of the vessel, a third Addendum was entered into between the parties. Copy of Addendum-III dated 20th May, 2016 is hereto annexed as Annexure H. 8. Even after the aforesaid agreement regarding date of delivery of vessel as Corporate Debtor refused to accept the vessel on charter until Corporate Debtor found a charter for it. Corporate Debtor then entered into a contract on 16th May, 2016 with another entity known as SGK which was to commence from 25th May, 2016 and the vessel was to be mobilized on the date of commencement. Accordingly, the vessel was delivered on 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mediately. This said payments were accordingly received by Petitioner from Corporate Debtor. Corporate Debtor further stated that a letter of Credit would be opened in favor of Petitioner for an amount of US$ 200,000/- by 24.08.2016, which Corporate Debtor failed to do again. Corporate Debtor agreed that a total amount of US$ 946,596.99/- had been invoiced by Petitioner. However, Corporate Debtor claimed certain deductions to the same which were agreed to be discussed on 24.08.2016. Despite Petitioner agreeing to the same, Corporate Debtor failed to resolve the said issue. Copy of the Minutes of the meeting dated 19.08.2016 is annexed hereto as annexure M. 13. Subsequently, the vessel suffered a breakdown as the cement stored onboard by Corporate Debtor's end user client, for the project, leaked, resulting in the air filters and sea water cooling systems getting choked due to wrong operation of vessel. Even though the issue regarding clearing the crew's salary was discussed and promises were made by Corporate Debtor to arrange funds to clear the same immediately, the entire dues of the crew could not be paid and hence crew change could not take place. For the months of A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 16.12.2015 vide their notice dated 16.09.2016, which was duly received and acknowledged by Corporate Debtor. 18. Corporate Debtor have in the meeting dated 19.08.2016 and otherwise, acknowledged their debt and have also made part payment towards six invoices raised by Petitioner. Despite several reminders given to Corporate Debtor as above, Corporate Debtor has failed to clear the outstanding dues which are duly payable to Petitioner. 19. The Petitioner had filed this CIRP petition under Form 5 of the Code through its previous Advocate after duly issuing a notice under Form 3. The said Petition, however, was withdrawn by the previous advocate without obtaining instructions from the Petitioner. On bringing the same to the notice of this Hon'ble Tribunal, the Hon'ble Tribunal vide order dated 05.01.2018 was pleased to give liberty to the Petitioner to file a fresh Petition. Hereto annexed and marked as Annexure U is a copy of the Order dated 05.01.2018. 20. Accordingly, the Petitioner again issued a notice under Form 3 dated 1st February 2018 to which a reply was received on 13th February, 2018 from the Corporate Debtor being dated 10th February, 2018. Hereto ann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue to non-payment of wages), breakdown of vessels engines etc. Thus, the Petitioner was in breach of its obligations to pay the masters and crew of the vessel which led to several instances of crew strikes and the delay. The Petitioner failed to maintain the vessel in proper condition and the engine broke down due to overheating and on account of FW coolers, LO coolers and associated piping. The Petitioner was also in breach of non-payment of insurance premium. 24. The Corporate Debtor referred to the minutes of the meeting held on 19.08.2016, it was agreed in the meeting that the Petitioner would meet the Corporate Debtor in Mumbai on 24.08.2016 to discuss and resolve the deductions. The area of deductions was captured as follows; -number of days of ZERO day rate during the period 25th May to 31st July, 2016 -Number of days of IDLE Times vs. Operational day rate claimed during above period. -Cost of board lodging payable by MAXSUN for its marine crew. -Hire of pinger/bell locator. -cost of fuel, lube, water, consumable, ETC during IDLE PERIOD. -cost of items provided by DOEIL for the vessel. -cost of DOEIL manpower for repair commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter the Petitioner again issued the demand notice on 01.02.2018, the Corporate Debtor replied to the said demand notice. The Corporate Debtor further submitted they are not liable to pay any amounts to the Petitioner. 27. The Petitioner filed the rejoinder and denied the allegations put forth in the reply and set out certain facts. The Petitioner claimed that a demand notice in form 3 was issued to the Corporate Debtor on 14.06.2016 which remained unanswered and hence C.P. no 1219/2017 was filed, the said C.P. was conspicuously withdrawn on 25.06.2017 by then advocate without instructions of the Petitioner. The Petitioner further alleged collusion between the Petitioner counsel and the Corporate Debtor and therefore the second notice was issued on 28.07.2017 to which the Corporate Debtor replied on 18.08.2017. The Petitioner has not instructed their counsel to issue such demand notice on 28.07.2017. 28. The Petitioner sought to claim the money due under 6 pending invoices and as such issued fresh demand notice on 01.02.2018. The Corporate Debtor replied to the demand notice stating that the reply dated 18.08.2017 should be treated as the reply to this notice. Further, the Pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , US$1,11,000/- was received by the Petitioner and the balance was deducted by the Corporate Debtor. The counsel for the Petitioner further relied upon the judgement of the Hon'ble supreme Court Mobilox Innovations Pvt. Ltd. V/s Kirusa Software (P) Limited 2017 (SCC Online SC 1154) and claimed that the Corporate Debtor failed to prove that there is genuine dispute pending between the parties. 31. The entire case revolves round the fact whether there is any dispute raised by the Corporate debtor or by and between the parties post execution of charter party Agreement and executions of addendum's between the parties which admittedly delayed the delivery of the vessel. The vessel sailed to Iran on 30.05.2016 and the Petitioner claimed the invoices for the month of June and July. Due to non-payment of the invoices the crew salary could not be paid and the engine crew started quarreling with the chief engineer for the non-payment of salary. The Petitioner also informed the Corporate Debtor that if the payment is not made by 15.08.2016 then the crew will suspend the work. The Corporate Debtor vide email dated 11.08.2016 promised to clear the USD15000000 but however no monies ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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