9911796707
TMI Blog2021 (12) TMI 961X X X X Extracts X X X X X X X X Extracts X X X X ..... MISHRA, TECHNICAL MEMBER 1. The present appeal has been filed by the 'Appellant' - 'Go Airlines (India) Limited.,' (Appellant/Operational Creditor) under Section 61 of the 'Insolvency and Bankruptcy Code, 2016' (in short 'Code') against the impugned order dated 26.08.2019 passed by the 'Adjudicating Authority' (National Company Law Tribunal, Mumbai bench), in CP (IB) No. 44(MB) /2018 vide which the Petition filed by the Appellant under Section 9 of the Code for initiating 'Corporate Insolvency Resolution Process' (CIRP) against the Respondent/Corporate Debtor - Sovika Aviation Services Pvt. Ltd, has been dismissed. 2. The Appellant has sought reliefs for setting aside and quashing the order dated 26.08.2019 passed by the Adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute is out of the ambits of this Code while dealing a Section 9 IBC Application. Respectfully following the precedents cited supra we find no force in this petition on account of the preliminary reason that there was undisputedly pre-existence of dispute among the Petitioner and the Respondent, therefore, Petition is not maintainable u/s.9 of the Insolvency Code. Resultantly, the Petition is hereby 'Dismissed. 4. The Appellant is a passenger airline operator having 'Domestic' and 'International' flights. The Appellant's route network spans across prominent business metros as well as key leisure destinations across the Indian subcontinent. 5. The Appellant and Respondent has entered into a 'Cargo Agreement' (for short 'Agreement') dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore 25th March, 2017 for Financial Year 2017-18 and on or before 25th March, 2018 for Financial Year 2018-19. 6. The details of all invoices raised by the Operational Creditor on the Corporate Debtor are reproduced hereunder: 7. The email correspondence during the month of June, 2017 is reproduced below which reflects strained relationship cropped up between the Appellant & Respondent: 8. The Appellant has also submitted that to wriggle out of the liability for the various dues of the Corporate Debtor started raising debit notes which were refuted by the Appellant vide its letter dated 22.06.2017 as depicted below: The Appellant has also submitted that the Corporate Debtor/Respondent has never disputed the Appellant's rejection of debit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onnage of cargo carried on the appellant's aircraft increased from approx.1800 tonnes per month to approx. 5000 tonnes per month during the terms of the first agreement, this increased the profit of the Appellant. The Second agreement is the result of the first agreement and the Respondent has commenced operation under the said agreement in July 2016 but it started facing several operational issues which were largely attributable to the Appellant like unlawful loading of cargo which resulted into a loss of over Rs. 20 Crore for the period August 2016 to April, 2017 to the Respondent. It has also referred to the meeting in the Appellant office on December, 21st 2016, January 12th, 2017, 14th February, 2017 to sort out the operational issues ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the said agreement. However, the Respondent had accepted that it has again circulated the revised commercials on 21.07.2017 vide its email appearing at page 122 of the Appeal Paper Book (Annexure -I to the Appeal). However, the Appellant didn't agree to the revised commercials and at a letter date issued termination notice and, thereafter, demand notice. It is also reiterated that between them there exists a genuine and serious dispute, particularly, due to the Appellant failure to provide cargo belly space on its aircrafts and offloading of respondent cargo. The Appellant failed to abide by primary obligations under the said agreement. It has also raised the cross claim of Rs. 27,74,71,081/- resulting from various debit notes which were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts till 31.03.2023 and the Corporate Debtor has already paid two instalments in terms of the Settlement Agreement. The Resolution Professional (RP) associated with the CIRP also confirmed that the Original Applicant- Operational Creditor under the Code also recommended for withdrawal of Application. The RP received only two claims from two operational creditors 'Air India Sats Airports Services Pvt Ltd. of Rs. 24.40 lakhs and another claim of 'Transport India' to the tune of Rs. 18.02 lakh. This reflects that the present Appellant's claim was not appearing in that list. In the current application also, the Appellant has encashed the bank guarantee of Rs. 39,91,00,000/- towards the dues from the Respondent. The Adjudicating Authority has d ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
