TMI Blog2021 (12) TMI 961X X X X Extracts X X X X X X X X Extracts X X X X ..... rporate Debtor is not healthy. CIRP was already initiated against it and the same has been closed by the Adjudicating Authority on 23rd September, 2021 after settlement with the Union Bank of India who has entered into OTS Agreement for release of payments in different instalments 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 Adjudicating Authority has drawn the inference of pre-existence of dispute which cannot be ruled out. It is also very much clear that the Appellant is chasing for payments which is also not the purpose of the Code. There are no infirmity in the impugned order - appeal dismissed. - Company Appeal(AT) (Ins) No. 1118 of 2019 - - - Dated:- 10-12-2021 - [Justice Ashok Bhushan] Chairperson, [Justice Jarat Kumar Jain] Member (Judicial) And (Dr. Ashok Kumar Mishra) Member(Technical) For the Appellant : Mr. K.Datta, Sr. Advocate, Mr. Amish Tandon, Mr. Ayush Beotra, Advocates. For the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ispute 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 ) dated 09th July, 2016 vide which the Appellant has agreed to provide to the Respondent, cargo belly space in its fleet of aircraft to carry out cargo services for such consideration and on such terms as specified in the Agreement. As per the Agreement, the Respondent was required to pay to the Appellant as consideration (i) an amount of ₹ 3,50,00,000/- as signing amount payable in 4(four) equal instalments within one year of signing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed notice of termination of Agreement dated 09.07.2016 due to non-clearance of outstanding amount of ₹ 13.46 Crore. 11. The Appellant/Operational Creditor also issued a Demand Notice demanding payment in respect of unpaid operational debt from Corporate Debtor for an amount of ₹ 17,60,80,625 crore providing the details of invoices outstanding for payments. 12. The Corporate Debtor has responded to the demand notice on 28.12.2017. In the reply, the Corporate Debtor has raised the issue of non-availability of appropriate belly space on Aircrafts of Appellant, loss of revenue to the Corporate Debtor and other issues. 13. The Respondent/Corporate Debtor has stated that in July, 2012 both the parties wherein carrying out the business of cargo sales, transportation and handling services on the aircrafts belonging to the Appellant (the same is at page 787 of the Appeal Paper Book). The first agreement was successfully performed by the Respondent as a result of which tonnage 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereafter, 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 ₹ 27,74,71,081/- resulting from various debit notes which were returned by the Appellant. 15. The Respondent has given a lot of stress on not providing minimum cargo belly space to the Respondent for loading cargo and as a result of which the Appellant was supposed to accept the debit notes termination of the agreement by the Appellant was nothing but a coercion to the Respondent being a petty business unit and thereby wriggle out of the liability which the Appellant was supposed to bear in respect of various elements of expenditure. Repeated internal circular dated 13.02.2017 and 15.02.2017 by the Appellant on the issue of cargo load to its employees itself reflect that they were violating the terms of the agreement for minimum belly space to the Respondent. Different emails and meetings between the parties cited by the Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X
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