9911796707
Advanced Search 
TMI Blog2021 (2) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... orwarding and Custom Clearance and the Respondent is a News Print Limited. 3. On 01.01.2010, the Respondent-Company issued a contractual order to the Appellant. The Appellant was handling consignment of the Respondent from 01.01.2010 to 29.05.2010 containing 14 documents in a span of six months and they have raised 14 invoices for payment of their charges in terms of the contractual order. The Invoices raised are between 12.05.2010 to 29.05.2010. The last payment was received by the Appellant from the Respondent was on 06.07.2010 for a sum of Rs. 1,89,000/-. 4. Failing to pay the amount by the Respondent, the Appellant issued a statutory notice dated 09.12.2010 under Section 434 of the Companies Act, 1956 for winding up of Respondent-Company on the ground of inability to pay the dues. After issuance of Notice, the Appellant filed Company Petition being C.P. No. 34 of 2011 before the Hon'ble High Court of Andhra Pradesh for winding up of the Respondent- Company. 5. The Respondent filed its Counter Affidavit before the Hon'ble High Court and raised some issues on two documents. During the pendency of the aforesaid Company Petition before the Hon'ble High Court, the Appellant prefe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey undertook to absorb loss incurred by the Respondent to the extent of Rs. 1,10,799/-. Thereafter, vide email dated 16.07.2010, the Appellant accepted to bear Rs. 2.06 lakhs towards delay in clearance of two documents. It is further submitted that the Appellant filed a Civil Suit being OS No. 778 of 2013 before the Hon'ble City Civil Court, Hyderabad claiming an amount of Rs. 46,24,500/- against the invoices. It is submitted that the Respondent filed its Written Statement to the Civil Suit wherein the Respondent raised a counter claim of Rs. 41 lakhs due to delay and deficiency in services caused by the Appellant. The counter claim was raised as Respondent had to appoint another agent in place of the Appellant because of the delay and deficiency in services caused by the Appellant. The reasons best known to the Appellant, the Appellant did not pursue the Civil Suit and it was dismissed for default on 03.08.2018 by the City Civil Court, at Hyderabad. Findings: 10. Heard learned Counsel appearing for the respective parties. Perused the pleadings, the documents and the citations filed relied upon by the parties in their support. 11. From the perusal of the impugned order at parag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it to the Respondent as on filing of the petition. The Respondent had filed Counter Affidavit to the above Company Petition on 26.09.2011. 15. It is seen that the Respondent had raised the dispute before the Hon'ble High Court of Andhra Pradesh in the Counter Affidavit dated 26.09.2011 filed as Annexure-R at page 81 along with the Appellant's Appeal Paper Book., it is stated that the Appellant failed to maintain the time schedule to clear the cargo out of which the Respondent suffered the business loss on account of delay. As a matter fact, the Petitioner-Company (Appellant) admitted the delay and even agreed to bear a sum of Rs. 1,10,779/-and Rs. 2,60,000/- vide their e-mails dated 08.07.2010 and 16.07.2010. Further, it is stated as such, the services rendered by the Appellant to the Respondent under the contract required to examine the relevant bills, its acknowledgement, number, delay occurred, damaged caused on account of such delay, verification and reconciliation of accounts after taking into account debit and credit notes, if any exchanged between the parties and the Respondent is ready and willing to settle and pay the amounts found. 16. Further Counter Affidavit dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent filed Counter to the Application before the Adjudicating Authority, raising the same plea as raised before the Hon'ble High Court of Andhra Pradesh and the Hon'ble City Civil Court at Hyderabad stating that there exists a dispute prior to the initiation of the proceeding before the Adjudicating Authority and submitted that as per the provisions of IBC, if there exists a dispute prior to the initiation of the proceeding or prior to the issuance of Demand Notice, the Application is not maintainable. 19. Now, we intend to refer to the crucial e-mails addressed by the Appellant to the Respondent dated 08.07.2010 and 16.07.2010 (pages 13 & 14 of the Reply filed by the Respondent before this Tribunal). Page-13, Annexure-A1 is the email dated 08.07.2010 addressed to the Respondent whereby it is stated: "Dear Sir, Thanks at the outset for extending the personal appointment today. Further to our discussions, have discussed this our senior management and agree to absorb the detention charges that accrued due to our delay on these shipments." ... Page -14 of the Reply, the Appellant addressed an e-mail dated 16.07.2010 to the Respondent stated as under: "Dear Mr. Gaurav, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit or arbitration proceeding must be pre-existing i.e. it must exist before the receipt of the demand notice or invoice, as the case may be. ....." "51. ..... Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the "dispute" is not a patently feeble legal argument or an assertion of fact unsupported by evidence." .... [Emphasis supplied] LEGAL POSITION: 20. Section 9 of IBC deals with the Application for initiation of Corporate Insolvency Resolution Process (in short CIRP) by Operational Creditor. Sub-section 3(d) read as under: ... "(3)(d) a copy of any record with information utility confirming that there is no payment of an unpaid operational debt by the corporate debtor, if available; and" ... As per the decision of the Hon'ble Apex Court, the Corporate Debtor (Respondent in this case) must bring to the notice of Operational Creditor, the existence of a dispute and/or the record of the pendency of a suit or arbitration proceeding filed before the receipt of such notice or invoice in relation to such dispute. In the present case, the Respondent very well brou ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
