2020 (9) TMI 993

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....Ltd. b. That Operational Creditor is into the business of Freight Forwarding and Custom Clearance. The Corporate Debtor appointed the Operational Creditor for clearing its Sea Imports Consignment at ICD-Hyderabad for providing certain services i.e., paying the shipping line payments, paying concor payments, collecting the delivery order from the shipping lines, custom clearance and handling the cargo vide the work order dated 01.01.2010. The time period and payment terms as per the Corporate Debtor is 30 days from the date of submitting the bill. The Operational Creditor had provided services and raised invoices with the corresponding bill of lading (10 in No. ) ranging from February 2010 to May 2010. The Operational Creditor stated that each invoice is pertaining to an independent contract. c. That the Corporate Debtor has admitted to pay the invoice vide e-mail dated 15.06.2010. In the said e-mail, the Corporate Debtor had categorically admitted that the Corporate Debtor will make payment of the invoices within 10 to 15 days. d. Since the Corporate Debtor defaulted in clearing its dues, the Operational Creditor had issued a statutory Demand Notice dated 09.12.2010 under Sec....

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....xcept for e-mails of the Operational Creditor dated 08.07.2010 and 16.07.2010 has not placed any material reflecting dispute. The e-mail dated 08.07.2010 is nothing but absorption of detention charges amounting to ' 1,10,700/- and the e-mail dated 16.07.2010 is the Operational Creditor's acceptance of ' 2.6 Lakhs towards the delay in clearance of two documents. n. The e-mail dated 15.06.2010 is categorical admission that the Corporate Debtor will arrange payment after the due date of invoices positively. Therefore, the Corporate Debtor is bound to establish as to which invoices were disputed out of the 10 invoices. o. That the Operational Creditor states that the statutory Demand Notice issued under the Companies Act, 1956 dated 09.12.2010 specifically notified that in addition to winding up, the Operational Creditor is entitled to other remedies available. Accordingly, the civil suit was filed which was dismissed for default. Therefore, as on 21.02.2019, the date of issuance of Form 3 Demand Notice, there was no suit or arbitration proceedings pending to bring it within the definition of dispute in terms of Section 5(6) of the I&B Code, 2016. p. That the Corporat....

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....nder: a. That the Application deserves to be dismissed due to the following three grounds:- i. Existence of dispute prior to notice ii. Limitation iii. Application filed without proper authorization b. That in the present case both the amount of debt as well as quality of service is under dispute. It is on record that dispute exists with respect to the claims of the Operational Creditor regarding the quality of services rendered by them. It is a fact that the Corporate Debtor suffered heavily, this could be verified from the email dated 08.07.2010 and 16.07.2010 extracted as under: Mail dated 08.07.2010 from PC to CD "Delay in clearance of 10x40 containers under 2 documents; Further to our discussions having discussed this with out senior management and agree to absorb the detention charges that accrued due to our delay on these shipments; Dispute amounting of Rs. 1,10,799/-; My only request is that to view our services and performances over the last six months and not this instance in isolation." Mail dated 16.07.2010 from PC to CD "Further to our discussions we Plots 4A and Plots 6B shipping accept to bear Rs. 2.6 Lakhs towards delay in clearance to the 2 ....

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....ill have to be resolved after taking into consideration of reconciliation of accounts...." From the above counter affidavit it is clearly established that there are existing disputes with respect to the claims. Hence the Application deserves to be dismissed with cost awarded. From the above it is clear that there is a pre-existing dispute right from the year 2010 between the parties as reflected by way of email exchanges and as seen from the pleadings in civil suit and winding up petition filed before Hon'ble High Court. g. It is to be noted that the above disputed amounts of ' 3,70,799/- was not reduced or adjusted by the Applicant in its claim. Refer page 4 columns 2, wherein, the gross claim of Rs. 30.62 Lakhs is not reduced with the above figure. This itself shows the conduct of the Applicant. h. That the invoices were raised in the Year 2010 and the form 5 is preferred on 23.08.2019. On the face of it, the Application deserves to be dismissed as barred by Limitation. As seen at page 4, column 2 of the Application wherein it is mentioned that date of default is 06.07.2010. Further as per Section 238A of the Code, the limitation is applicable to the present proce....