TMI Blog2022 (5) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... Application admitted - moratorium declared. - IB-153/(ND)/2020 - - - Dated:- 25-4-2022 - P.S.N. Prasad, Member (J) And Rahul Bhatnagar, Member (T) For the Appellant : Abhinav Hansaria For the Respondents : Prashant Mehta and Raghav Marwaha ORDER Rahul Bhatnagar, Member (T) 1. This is an application filed by the Applicant M/s. VS B Domestic Container Solutions Pvt. Ltd. seeking to initiate corporate insolvency resolution process ( CIRP ) under Section 9 of the Insolvency and Bankruptcy Code 2016 ( the Code ) of the Respondent M/s. Maple Logistics Pvt. Ltd. for the alleged default on the part of the Respondent in clearing the debt of Rs. 50,06,662 (Rupees Fifty Lakhs Six Thousand Six Hundred and Sixty Two rupees) including interest @ 36% p.a. calculated till 19.09.2019 i.e. the date of issue of demand notice as alleged by the Applicant. During the pendency of the present petition, the Respondent had returned some containers to the Applicant, against which the Applicant had issued credit notes and raised invoices for on hire charges as per the terms of the agreement. Thus, as on date, out of the total of 40 containers for which DRV Invoices were issued, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o make the payment within ten days from the date of receipt of the notice i.e., by 04.11.2019 under the Insolvency and Bankruptcy Code, 2016. 2. Consequent to the notice issued by this Tribunal, the Counsel for the Corporate Debtor filed its reply on behalf of the Corporate Debtor stating as below: i. That the Respondent specializes in handling transportation of Heavy cargo and is involved in auxiliary transport activities. The respondent commands immense goodwill in the market and the Applicant is attempting to damage the reputation of the respondents by filing vexatious, malicious and frivolous claims before this Tribunal. ii. That the present petition is barred by existing dispute between the parties on account of deficiency in services as entailed under the General Term and Conditions dated 01.01.2014, Commercial Terms and Conditions along with amendments dated 01.01.2014, 01.01.2015 and 01.01.2017. The terms and conditions in the agreement are one-sided, unfair and unjust towards the lessee/Respondent. iii. That the Supreme Court had, in the case of Pioneer Urban Land Infrastructure Ltd. Vs. Govindan Raghavan 2019 5 SCC 725 and Pioneer Urban Land Infrastr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 3-4 places appointed by the applicant. The said conduct of the applicant was completely contrary to the contractual terms as well as the normal trade usage in the industry. x. That the termination of the contract was completely illegal by the applicant and therefore as well the present petition is liable to be dismissed as the same shows that there was pre existing dispute. xi. That the present petition is not maintainable as the applicant never served the demand notice as contemplated under Section 9(3) of the Insolvency 85 Bankruptcy Code. 3. The Operational Creditor has filed rejoinder to the reply of the Corporate Debtor stating that: i. That there exists no dispute between the parties with respect to the amount due and payable by the Respondent to the Applicant. The contract was entered into between the parties in the year 2014, which was subsequently extended and amended in the following years. It is completely baseless to even suggest that the said terms and conditions are one sided and cannot bind the Respondent, let alone the fact that the Respondent has never ever raised the said issue prior to the filing of the reply. ii. That the judgment of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way of email dated 12.04.2019 had offered to return the containers at certain locations and the Applicant refused to accept the same due to the obsolete condition of the containers. As per the Redelivery Schedule Addendum of the Commercial Terms and Conditions (@Page 41 of the Application), the parties had agreed Delhi and Mumbai to be the off - hire locations. However, in good faith and by incurring additional charges, the Applicant had accepted the containers at other locations as well, being Kolkata and Mundra. vi. That it is denied that the Applicant had arbitrarily computed the DRV charges without any substantial explanation for such calculations. It is submitted that the Respondent had never raised an issue prior to the issuance of the present reply and thus is prohibited from raising any-such issues at this stage. The DRV invoices in the present case were not raised due to high repair cost as provided under Clause 6 of the agreement, but under Clause 18.2 of the agreement on account non - return of the containers and thus the corresponding submissions of the Respondent has no relevance whatsoever. vii. That the Respondent has raised baseless contentions simply in o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record to substantiate their respective claims, this Adjudicating Authority is of the view that there is an operational debt which is due from the Corporate Debtor and the Corporate Debtor has defaulted in making payment of the amount due and accepted the said default. The Corporate Debtor had, before accepting the default, contended that there exists a pre existing dispute as the terms and conditions in the agreement were one-sided, unfair and unjust towards the Respondent. However, the Corporate Debtor had himself signed the contract in the year 2014, which was subsequently extended and amended in the subsequent years. The Corporate Debtor never raised any dispute w.r.t. the terms of the contract before the filing of this petition. Therefore, in the absence of any preexistence of dispute, this tribunal admits this application and initiates CIRP on the Corporate Debtor with immediate effect: 1. The interim resolution professional ( IRP ) proposed by the Applicant, Mr. Vinod Radhakrshnan Nair, (Mobile No. - 7039500000), Reg. No: IBBI/IPA-001/IPP01352/2018-19/12083 is being confirmed by this Bench. He shall take such other and further steps as are required under the statute, mo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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