TMI Blog2024 (4) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant cannot be accepted for two reasons. Firstly, in a reply dated 13.06.2021, the Corporate Debtor has clearly indicated about the deduction under Section 194(C) as well as the credit of GST amount. In the reply it was stated that the Corporate Debtor was to issue debit/ credit note and the Operational Creditor has not settled the accounts for last five years for under-loading and overloading and demurrage charges debited by principal borrower, as Operational Creditor was required to adjust the amount. Thus, deduction under Section 194(C) cannot lead to conclusion that Corporate Debtor acknowledged the liability to pay the entire bills of the Operational Creditor. The dispute was raised by the Corporate Debtor, which is reflected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded outstanding principal amount of Rs.3,93,92,131/-. The Corporate Debtor replied to the above letter disputing the outstanding dues. The Appellant objecting to the denial of the claim by the Corporate Debtor again prayed for payment of outstanding amount. The Corporate Debtor by the legal notice dated 13.06.2021 disputed the claim and stated that M/s Hndalco Industries Limited, the Principal Contractor has imposed demurrage charges on the Corporate Debtor and imposed penalty on the Corporate Debtor, which is required to be adjusted from the Operational Creditor. The claim made by the Appellant vide its letter dated 22.02.2021 was denied and it was stated that Operational Creditor is liable to refund certain amount. (iii) The Appellant th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Corporate Debtor had brought to the notice of the Operational Creditor, the disputes regarding the demurrages imposed by the principal employer long before the demand notice dated 09.08.2021 was issued. As such the Operational Creditor had notice of the said disputes before the service of the demand notice under section 8 or the Code. 4. The materials which were brought on record before the Adjudicating Authority including the Notice given by the Operational Creditor and reply by the Corporate Debtor, which was much prior to the Demand Notice, are clear indication of pre-existing dispute. We may refer to Notice dated 20.04.2021 issued by the Operational Creditor to the Corporate Debtor, which was in response to letter dated 11.02.2021 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as issued as a subcontract to your company against the service order which is issued by the principle company, M/s HINDALCO INDUSTRIES LTD. to my client and the pane] clauses as mentioned in the service order of the said principle contract is applicable to your company also. That while awarding the subcontract of the job to your company of handling of coat at Tori siding, it was clearly specified to your company about the scope of the work, which not only includes the mere loading of materials into rakes but also as a general practice, the onus on liability for under loading and over loading of rakes as well as the demarage charges of railway for detention of wagon in excess of permissible time limit for loading, are also within the scope o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty amount of the under-loading, overloading and demurrage charges debited by principle company, but my client is quite surprised to note that your company has finally created dispute over this matter by bluntly refusing to bear the loss my client have borne for the negligence on your part while performing the assigned job. In reply to your allegation in Para-9 my client would also like to state that is a common practice to follow and abide the miles stipulated by the railways authority while loading and handling of rakes in the railway siding and one cannot performed the assign job whimsically and negligently without abiding the rules of the railway authority and it is also unfeasible and impractical for the one who award the contract wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 47,97,381/- which you are liable to pay to my client after adjustment of the under-loading, overloading and the demurrage charges of the railway, otherwise my client will have no other option but to initiate civil/ criminal legal proceedings against your company for recovery of our claim amount without further reference and you will be liable for the same. Thanking you, Yours sincerely, Sd/- Chandan Banerjee Advocate Durgapur Court R.K. Transport Pvt. Ltd. Sd/- Director 5. The Demand Notice was issued by the Operational Creditor on 09.08.2021, i.e., much after the reply was given on 13.06.2021, when the Corporate Debtor had denied the claim of the Appellant and clearly claimed that penalty imposed by principal borrower, is to be deducted fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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