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TMI Blog2022 (7) TMI 1246X X X X Extracts X X X X X X X X Extracts X X X X ..... ibeam Logistics Pvt. Ltd.- Corporate Debtor for the default of Rs. 8,72,582/- along with interest @ 24% per annum. 2. The averments made by the Operational Creditor are summarised as under; (i) The Corporate Debtor approached the Operational Creditor for transportation of its consignments to various places in India as per the directions of the Corporate Debtor. The Operational Creditor provided the services and raised 12 invoices from 28.02.2019 to 31.08.2019 for an amount of Rs. 8,72,581.69/-. Copies of the statement of accounts of the Corporate Debtor maintained by the Operational Creditor as well as copies of invoices are also annexed with the application. (ii) Despite several requests and reminders by the Operational Creditor to ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice obligations by the Operational Creditor. The said clause in no way limits the liability of the Operational Creditor, the Corporate Debtor is indemnified by the Operational Creditor to the extent of any loss that the Corporate Debtor has suffered due to the deficiencies in services of the Operational Creditor. (iii) Since the beginning of the transactions, there have been various deficiencies in services at the end of the Operational Creditor either by losing the goods in transit or delivering damaged goods. The Operational Creditor also accepted the same by issuing the Certificate of Facts (CoF). The CoF issued by the Operational Creditor acknowledging the damage as well as loss of goods in transit are annexed with the reply, (Annexu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 70,57,507/- approximately to the Operational Creditor. Therefore, it can not be said that the Corporate Debtor is not a solvent entity. The Corporate Debtor is legally entitled to deduct the amount claimed by the Operational Creditor towards the loss suffered. (vii) The demand notice issued by the Operational Creditor in Form-3 is incomplete as the Operational Creditor has not mentioned the name, position, and address of its signatory. The present application is not signed by the authorized signatory of the Operational Creditor. The authority/Board resolution produced by the applicant has a validity for 6 months only and that had expired when the application was filed. 4. The Operational Creditor filed its rejoinder on 04.03.2021 and ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Rs. 5,000/- or the actual loss whichever is less. Hence, the dispute raised by the Corporate Debtor is false and with an intention to misguide this Adjudicating Authority. 5. Heard the Ld. Counsels of the parties and perused the material on record. It is noted that the Principal Agreement was executed between the Operational Creditor and the Corporate Debtor for logistics delivery services. Thereafter, the terms of the Principal Agreement with respect to loss and damage of the goods during transits were amended by the parties vide Addendum dated 09.10.2017. The Operational Creditor provided the services to the Corporate Debtor and raised 12 invoices between 28.02.2019 to 31.08.2019 of Rs. 8,72,581.69/-. The demand notice was issued by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reproduce clause 3 of the Addendum dated 09.10.2017 hereunder; "3. That as per the request of INFIBEAM LOGISTICS PVT. LTD, TCI EXPRESS LIMITED is agreed to issue COF (Certificate of fact) in favour of NSI INFINIUM GLOBAL PVT. LTD. However in no case TCI EXPRESS LIMITED shall be responsible for any financial liability, If, Insurance Company (Insurance Company of NSI INFINIUM GLOBAL PVT. LTD) reject the CoF and refuse to pay any amount against the damage. Accordingly, the parties hereby agree to incorporate the following clause No. 06 to the Principal Agreement. "6. COF (Certificate of Facts) The parties herein understand that INFIBEAM LOGISTICS PVT. LTD. is a logistics partner of NSI INFINIUM GLOBAL PVT. LTD. (hereinafter referred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Operational Creditor for the loss of shipments, and rests are issued for the damaged shipment during the transit. Copies of 21 CoFs issued by the Operational Creditor from 17.07.2018 to 13.12.2018 are also placed on record by the Corporate Debtor, out of 21 CoFs, 3 were issued for the loss of shipments during the transit. The Corporate Debtor sent a number of emails from 01.11.2017 to 24.08.2019 to the Operational Creditor for damaged/loss of goods during the transit by the Operational Creditor which was prior to the issuance of the demand notice dated 07.11.2019. 9. The Hon'ble Supreme Court of India in the case of "Mobilox Innovation Private Limited versus Kirusa Software Private Limited" (2018) 1 Supreme Court Cases 353 : (201 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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