TaxTMI 
TaxTMI 
2019 (9) TMI 963
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....or namely M/s Starlog Enterprises Limited is a company incorporated on 15.12.1983 under the provisions of Companies Act, 1956 having CIN No. L63010MH1983PLC031578. 3. The company is having its registered office at 141, Jolly Maker Chambers II, 14th Floor, Nariman Point, Mumbai- 400021. 4. The Corporate Debtor namely M/s Sarens Heavy Lift India Private Limited is a company incorporated on 31.03.2009 under the provisions of Companies Act, 1956 with CIN No. U29253DL2009PTC189026. 5. The company is having its registered office at F-90/25, Okhla Industrial Area, Phase-I, Delhi- 110020. 6. The Authorised Share Capital of the respondent company is Rs. 1,72,50,00,000/- and Paid Up Share Capital of the company is Rs. 1,72,50,00,000/- as per Master Data of the company. 7. It is the case of the Operational Creditor that Corporate Debtor was desirous of hiring a 250 MT Crawler Crane from the Operational Creditor at Nabinagar, Bihar. Subsequently, the Operational Creditor vide an email dated 14.07.2017 submitted the quotation for hiring a 250 MT Crawler Crane to the Corporate Debtor. In pursuance to it, a work order bearing No. 501/23/17/0929 dated 27.07.2017 was executed by the ....
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.... In the meantime, the parts which were in good working condition were transported by the Corporate Debtor to its own yard and as claimed by Operational Creditor the same are retained by Corporate Debtor till date. 11. The Operational Creditor could manage to arrange another Crane at the Corporate debtor's site on 06.01.2018 so that the Corporate Debtor can initiate the transportation of the damaged parts of Crane back to operational creditor. However, till date the damaged parts of the Crane have not been transported to the Gadarwara yard of Operational creditor by the Corporate Debtor. 12. The Operational Creditor sent a demand notice dated 24.07.2018 to the Corporate Debtor seeking payment of Rs. 2,83,78,085/- on account of damages to the cabin/ car body of the Crane. It is further submitted that the estimate of loss is based on a quote received from FUWA Global towards refurbishment of the damaged crane cabin/car body dated 24.08.2017. 13. The Corporate Debtor replied to the said demand notice vide its letter dated 10.08.2018 where they disputed the claimed amount of the Operational Creditor. 14. The Operational Creditor further sent another demand notice dated 04.09....
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....osses suffered by the Operational Creditor as a consequence of such damage. 20. The Corporate Debtor further states that Operational Creditor's claim for the damage caused to and for repair of Crane was rejected by the insurance company i.e. ICICI Lombard General Insurance Company Limited on the ground that - "any loss or damage arising out of transit where weight of cargo exceeds registered laden weight as mentioned in registration certificate of the vehicle will not be covered by the policy availed by the applicant". Therefore, it is submitted that this claim is only an afterthought because the insurance company has rejected the claim of the Operational Creditor. 21. It is further submitted that Operational Creditor has also claimed an amount that was charged by Mcnally Bharat Engineering Limited for the repair work at various areas of NTPC site being damaged. This claim is outside the purview of Section 5 (21) of the Code which defines 'Operational Debt'. The settled position of law is that damages/compensation in any respect is not an 'operational debt' defined under Section 5(21) of the Code. 22. It is further submitted by the Corporate Debtor that Operational Cred....
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....2016, dispute has been defined in Section 5(6) as follows: "Dispute" includes a suit or arbitration proceedings relating to-(a) the existence of the amount of debt; (b) the quality of goods or service; or (c) the breach of a representation or warranty. Further the Hon'ble Supreme of India in Mobilox Innovations Private Limited vs. Kirusa Sortware Private limited has observed that- "The adjudicating authority, when examining an application under Section 9 of the Act will have to determine: (i) Whether there is an "operational debt" as defined exceeding Rs. 1 lakh? (See Section 4 of the Act) (ii) Whether the documentary evidence furnished with the application shows that the aforesaid debt is due and payable and has not yet been paid? and (iii) Whether there is existence of a dispute between the parties or the record of the pendency of a suit or arbitration proceeding filed before the receipt of the demand notice of the unpaid operational debt in relation to such dispute? If any one of the aforesaid conditions is lacking, the application would have to be rejected. Apart from the above, the adjudicating authority m....