TaxTMI 
TaxTMI 
2020 (9) TMI 993
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....y, changed its name to M+R Logistics (India) Pvt. 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 C....
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.... Code of 2016 are mandatory and as such the same cannot be construed as fresh cause of action. m. That the Corporate Debtor except 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....
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..... Relying on the aforesaid evidence to prove the existence of debt and default, the Ld. Counsel for the Operational Creditor prayed to admit the matter. Respondent/Corporate Debtor filed its counter and written submissions inter-alia stating as under: 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 amounti....
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....espondent is ready and willing to settle and pay the amounts found. Hence all the adverse allegations made in para 14, 15 and 16 are hereby denied. "(xi) in reply to para 20 & 21, it is submitted that there are certain disputes exist between the parties to settle their respective accounts in relation to the contract entered by and between the Petitioner and Respondent and such disputes will 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 ....