TMI Blog2021 (5) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... nal creditor. In the above circumstances this petition fails and this Tribunal dismisses the petition. Petition dismissed. - C. P. (I.B.) No. 398/(ND)/2020 - - - Dated:- 3-5-2021 - P.S.N. Prasad, Member (J) And Dr. V.K. Subburaj, Member (T) ORDER Dr. V.K. Subburaj, Member (T) 1. This is a petition filed by the petitioner Shri Ajay Singh @ Aajy Chauhan, Proprietor of M/s. Galaxy Logistics Services seeking to initiate CIRP against M/s. Trim India Pvt. Ltd., the respondent/corporate debtor for the alleged default on the part of the corporate debtor in settling an amount of ₹ 96,66,919/- including the interest component towards the services offered by the petitioner/operational creditor. The details of the transactions as averred by the petitioner are as follows:- i. That the operational creditor is the proprietor of M/s. Galaxy Logistics Services engaged in the business of providing Freight Forwarding Services to its clients and is also registered as a micro industrial unit under the MSME. ii. The corporate debtor approached the applicant in the year 2014-15 for availing courier and transportation services for its goods from one place to another. Base ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... month of August and September and deliberated at length with Mr. Sood upon all the issues concerning both the parties. That the operational creditor duly communicated to the Debtor that he shall forthwith withdraw from all the pending and on going works undertaken by him unless his payments are secured by means of a written contract/document. Mr. Sood after taking into consideration the loss that may be caused to the businesses of both the parties by an abrupt stoppage of trade between the parties, acceded to the request of the operational creditor and as such in order to inspire confidence in the creditor, acknowledged the debt of the corporate debtor by issuing its account statement for the relevant period of 2018-2019 at the insistence of the operational creditor. vii. That despite having admitted its liability to the tune of ₹ 93,04,641/- (as on 31.08.2019) just a few days back, the corporate debtor sent frivolous E-mails dated 16.09.2019 and 18.09.2019, whereby, a debit note amounting to ₹ 1,01,23,915/- (Rupees One Crore, One Lakh Twenty Three Thousand Nine Hundred and Fifteen Only) was threatened to be issued upon the operational creditor by 21.09.2019 post h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 5 of the IBC (Application to the Adjudicating Authority) Rules, 2016 was served afresh upon the corporate debtor vide Email dated 28.09.2019 which was also replied to by the corporate debtor vide email dated 05.10.2019 xi. The corporate debtor vide its reply dated 04.10.2019 has refuted the claim of the operational creditor on many grounds. xii. That it is humbly submitted that the conduct of Mr. Sood who is controlling the affairs of the corporate debtor being a director is extremely stupefying. The following submissions are significant to decipher the misdeeds undertaken by him to give colour to his evil designs; a. The operational creditor herein is providing courier services to the corporate debtor since 2014-15 and transportation services since 2017, however not even once has the corporate debtor ever communicated with the operational creditor w.r.t. the rates at which the invoices were raised or has indicated any overcharging, let alone returning the invoices. b. That Mr. Sood on one hand raised the issue of excess charges in the invoices, however, on the other hand kept acknowledging the invoices raised even till 31.08.2019 on identical rates raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and logistics provided by the applicant. It is stated that on various occasions the rates of the services were discussed and mutually set, but the applicant continued to charge the old and high rates for the services. Further, the respondent vide e-mail dated 16.09.2019 and 18.09.2019 intimated the applicant about the debit notes of an amount of ₹ 1,01,23,915/- (Rupees One Crore One Lakh Twenty Three Thousand Nine Hundred and Fifteen Only) with regard to the excess charges in freight in transportation to which the applicant have accepted the default in billing on their part as their account person had charged the old and high CFT rate of ₹ 10 whereas the rate was settled at ₹ 5. It hence proves the existence of a real dispute between the applicant and the respondent and accordingly this application holds no merits in the eyes of law whatsoever. ii. It is further submitted that the applicant had approached the Managing Director of the respondent-CD in early 2018 and took a loan of ₹ 35,00,000/- (Rupees Thirty Five Lakh Only) at an interest of 24% p.a., accordingly the Managing Director of Respondent-CD had provided applicant with two cheque detailed be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btor. vi. That it was Anil Khatana who had introduced Galaxy Logistics Services to the respondent for transportation of goods and courier services. This was done in total connivance with the applicant, who was an ex-employee of Beacon courier and had then formed Galaxy Logistics Services as a proprietor in order to defraud the respondent-CD in connivance with said Anil Khatana. vii. That when the respondent-CD finally understood the entire design of conspiracy hatched to cheat by way of bogus billing and excess billing, Police, Gurugram and subsequently an F.I.R. No. 137 dated 25.06.2018 u/s. 420/467/468/471/406/120 IPC was registered at P.S.: Sector-37, Gurugram against Anil Khatana, Lakshmi Raj Solanki, Vikas Solanki, Manju Solanki and others regarding the over invoicing made by Beacon Courier and Cargo Pvt. Ltd. It is pertinent to mention that in the reply dated 21.09.2019 filed by the respondent-CD in pursuance to the Section 91 Cr.P.C., the respondent-CD have submitted that Galaxy Logistic Services was introduced to them through Mr. Anil Khatana and that the applicant in connivance with Mr. Anil Khatana charge for boxes in excess of actual box sizes, local transp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perational creditor has sent the notice under Section 8 of IBC 2016 which was served on the corporate debtor on 28.09.2019. However, the Whatsapp chats and emails exchanged between the petitioner and the respondent between 23.02.2019 and 19.09.2019 clearly reveal that there is a dispute between the parties on the rat of CFT charged by the petitioner as well as matters relating to excess billing on the part of the petitioner/operational creditor. Further the respondent/corporate debtor vide email dated 16.09.2019 and 18.09.2019 intimated the petitioner/operational creditor about the debit notes of an amount of ₹ 1,01,23,915/-. In this reply to the first Section 8 notice dated 20.09.2019 sent by the operational creditor, the corporate debtor has replied on 26.09.2019 in which he has clearly stated that existence of preexisting dispute qua the demands made in the notice. All these clearly indicate the existence of dispute between the parties prior to the issue of notice under Section 8 of IBC 2016 by the petitioner/operational creditor. In the above circumstances this petition fails and this Tribunal dismisses the petition. 5. We make it clear that any observations made in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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