TMI Blog2022 (10) TMI 887X X X X Extracts X X X X X X X X Extracts X X X X ..... of Mr. Bruno Claeys refusing to accept that the signature on the letter dated 11.3.2013 was not in his hand-writing, it is not established that so-called operational debt is due and payable to the Appellant. We have also looked at the Charter Agreement between Air India and Orbest Airlines (attached at pp.148-159 of the appeal paperbook, Vol.II) wherein there is no mention of BKP Enterprise to act and collect payment on behalf of the original operational creditor Orbest Airlines. Significantly, vide a letter dated 28.11.2012, Mr. Sohil B. Zaveri and Mr. Bharat N. Zaveri of BKP Enterprise were authorized to reconcile the Orbest accounts with Air India in respect of the Haj operation undertaken in the year 2012. The e-mails that have been cited by the Appellant in his application IA No. 3425/2021 for condonation of delay do not provide clear and unequivocal acknowledgment of debt that is due to be paid to the Appellant. These e-mails only allude to the fact that there was no clarity between whether payment should be made to BKP Enterprise and moreover, Orbest airlines after liquidation certified that no payment was due to be received from Air India. The application for condona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... added that Air India raised the requirement of bank guarantee and later letter of indemnity bond in order to make the said payment to the appellant, but it could not be made as formalities remained incomplete. The Appellant has further stated that he filed a writ petition before the Hon ble High Court of Delhi in May, 2018, which was disposed of vide final order dated 28.11.2018 on the ground that the Hon ble High Court of Delhi did not feel inclined to examine the matter under writ jurisdiction of Article 226 of the Constitution of India. He has stated that, thereafter, a demand notice dated 28.4.2021 was issued by the operational creditor BKP Enterprise to the corporate debtor Air India and later a section 9 application dated 30.6.2021 was filed by the Appellant, in which the Impugned Order came to be passed dismissing the application filed under section 5 of the Limitation Act for condoning delay in filing the section 9 application. 5. A perusal of the Impugned Order makes it clear that during the hearing of section 9 application by the Adjudicating Authority, it was noticed that the date of default mentioned in Part IV of section 9 application was 11.3.2013, whereas section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Commercial Director s letter dated 11.3.2013 that the final payment did not take place, but the fact is that the operational debt is in default and payable to the Appellant. He has further argued that the time spent in pursuing his writ petition before the Hon ble Delhi High Court was done with full sincerity and therefore, the time spent in prosecuting the writ petition should be considered for exclusion out of time period when counted for the purpose of limitation. 9. The Learned Counsel for Respondent has argued that the appellant is not an operational creditor, since he was only authorized by its principal Orbest Airlines to submit, represent and act on behalf of Orbest Airlines for the ensuing Haj operations for Air India and neither was he authorized to receive payment nor was the Charter Agreement novated to authorize him to receive payments on behalf of Orbest airlines and further he received the earnest money deposit made by him on behalf of Orbest Airlines, as per one-time authority dated 10.1.2013 given by Orbust Airlines. Furter, the Commercial Director of the principal, Orbest Airlines requested Air India vide letter dated 11.3.2013 to remit the remaining a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debt by the corporate debtor. We note that an earlier e-mail dated 7.11.2017 sent by Director (Finance) of the corporate debtor requesting that an Indemnity Bond may be submitted by the operational creditor. A perusal and reading of this e-mail shows that the corporate debtor was not certain that the amount of US $ 275,000 as claimed by the Appellant is even due to the corporate debtor, which was taken under liquidation on 4.4.2013 and whose liquidation was finalized on 21.1.2014. Again since the matter as to whether payment of the operational dues to the Appellant would be proper and in order, and not be appropriate as Orbest Airlines had been liquidated, the corporate debtor took the views of ASG, a senior law officer, which opinion was communicated to the operational creditor/Appellant vide e-mail dated 7.6.2017 (attached at pg. 184 of the appeal paperbook, Vol. II). In this e-mail, the issue of authenticity of the letter issued by the ex-Commercial Director of ex-Orbest Airlines was raised by the corporate debtor. This view is extracted in the said e-mail, which is as follows:- Air India would have to undertake the exercise of verifying the authenticity of the said letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention of BKP Enterprise to act and collect payment on behalf of the original operational creditor Orbest Airlines. Significantly, vide a letter dated 28.11.2012, Mr. Sohil B. Zaveri and Mr. Bharat N. Zaveri of BKP Enterprise were authorized to reconcile the Orbest accounts with Air India in respect of the Haj operation undertaken in the year 2012. 16. We also note that the Hon ble High Court of Delhi in WP (C-5823/2018 and CM No. 4698/2018 qua which BKP Enterprise had prayed for issuing a writ of mandamus against Air India for outstanding payment of US$ 22,537 together with interest accrued thereon @ 18% p.a. from 11.3.2013, the Hon ble High Court of Delhi while dismissing the writ petition noted as follows:- 4. This court is of the view that controversy involved in the present case raises a disputed question of fact and it would not be apposite to examine the same in these proceedings. In view of the above , the present petition is disposed of, leaving it open for the petitioner to institute proper action for recovery, if so advised, in accordance with law. 17. Thus, it is clear from the above noted order of Hon ble High Court of Delhi that there was a dispute about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imited vs. Bishal Jaiswal (supra), it is quite clear that a jural relationship should be established between the parties, which should be in existence and thereafter the said liability can be acknowledged. In the e-mails that the Appellant has mentioned in his section 5 application under Limitation Act, no jural relationship as operational creditor and corporate debtor has been established between the Appellant and Respondent, and therefore the e-mail communications of Air India do not constitute acknowledgment of the debt. 21. We have noted in previous paragraph that the status of BKP Enterprise as operational creditor is not established and hence the debt is not due and payable to the appellant. The application IA 3425/2021 lists e-mail communication starting from 7/3/2013 to 21/11/2017 as acknowledging the operational debt. The period between 23.3.2018 to 28.11.2018, which is the time when the Appellant pursued writ petition before the Hon ble Delhi High Court, is stated by Appellant as spent in bonafide pursuit of legal remedy. This pursuit of legal remedy before Hon ble Delhi High Court to obtain writ of mandamus against Air India was dismissed as the matter involved disput ..... X X X X Extracts X X X X X X X X Extracts X X X X
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