TaxTMI 
TaxTMI 
TaxTMI 
2020 (1) TMI 1265
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....r. Pervinder Singh Chandok of PSC FZE of UAE, representing Dolphin Offshore Enterprises (India) Limited, approached Petitioner's authorized representative Mr. Anil Kumar Singh, representing Corporate Debtor's intention of hiring one of Petitioner's vessels being Diving support Vessel E. Francis (IMO 7408897) for a 5 (Five) years of long-term charter. 3. Subsequently, a meeting was held between Corporate Debtor's managing Director, Mr. Satpal Singh and Petitioner's Mr. Anil Kumar Singh on 16th December, 2015, wherein Corporate Debtor agreed to hire Petitioner's vessel E. Francis (IMO 7408897) for a period of 5 years subject to certain terms and conditions. Copy of the Minutes of the Meeting dated 16th December, 2015 is annexed hereto as Annexure D. 4. Later, on the same date i.e. 16th December, 2015, A BIMCO time charter party agreement was entered into between Petitioner and Corporate Debtor for charter of Petitioner's vessel bearing No. DP2 DSV M/V E. Francis- IMO No. 7408897 for a period of 5 years from the date of delivery being 01.01.2016-29 days, on the terms and conditions stated therein. Copy of the Agreement dated 16th December, 2015 is annexed....
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....ate was considered. Invoices bearing Nos. INV/003/06/16 and INV/004/07/16 were raised upon Corporate Debtor for the said months. Copies of the said Invoices are annexed hereto as Annexure J and K. 10. As no payments were made by Corporate Debtor, despite raising the aforesaid invoices, Petitioner addressed reminder emails dated 26th July 2016 and 10th, 12th, 13th, 14th, and 15th August, 2016 requesting Corporate Debtor to clear the same as the crew of the vessel gave repeated warnings to stop operation as their dues were not paid for a period of more than 3 months. However, Corporate Debtor failed to respond to the aforesaid emails or clear the dues which resulted in the crew stop working on 15.08.2016. Hereto annexed and marked as Annexure L-Colly is a copy of the printout of the aforesaid reminder emails. 11. On the happening of the aforesaid event, Corporate Debtor made immediate efforts to make payment of Petitioner and promised to release a sum of US$ 150,000/-. Accordingly, an amount of US$ 111,000/- was received by Petitioner after Pervinder Singh Chandhok of PSC FZE, Corporate Debtor's representative, wrongly deducted a sum of US$ 39,000/- as his commission. 12. In t....
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....er when Corporate Debtor received payment from their end user i.e. SGK. The same had been brought to Corporate Debtor's notice by Petitioner's email dated 29.06.2016. Hereto annexed and marked as Annexure Q is a copy of the printout of the email dated 29.06.2016. 15. The Corporate Debtor vide email dated 01.09.2016, informed the Petitioner that this client SGK terminate the contract with them and requested to immediately move the vessel back to its port of delivery being any port in UAE to which Petitioner replied vide email of the same date requesting Corporate Debtor to clear their outstanding dues and further stating that in order to move the vessel out of Iran offshore operational area necessary clearances would be required and disembarkation of Iranian project crew and their equipment will be required. In spite of repeated reminders to clear outstanding dues and to provide the necessary documents for port clearance, Corporate Debtor failed to provide the same. Petitioner cleared the dues of some of the officers of the vessel, after borrowing funds and eventually moved the vessel out. 16. The Petitioner addressed an email to Corporate Debtor, dated 18.09.2016, whereby....
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....ner and infect he had a counter claim of amounting to US $352,645.44/- against the Petitioner. The Corporate Debtor claimed that there were disputes existing between the parties under Charter party dated 16.12.2015 for excess payment made therein, there were frequent crew strikes/break down of machinery/deficiencies in the vessel. There were facing claims from the Corporate Debtor sub-charters namely Sanat Gostar Kish Ltd. (SGK) on the account of the vessel being non-operational and thus, claim that there is no operation debt due and payable to the Petitioner. 22. The Corporate Debtor claimed to have entered into charter party dated 16.12.2015 for a period of 5 years for charter of Petitioners diving support vessel, DP2 DSV M.V.E. Francis- IMO No. 7408897 for a period of five years, on terms and conditions mentioned therein (already as Annexure E to the Company Application). It is to be highlighted that as per the terms and conditions of the Charter Party Agreement, the payment of Charter hire to Petitioner was on back to back basis i.e. that Corporate Debtor was liable to pay Petitioner, only on receipt of payments from their sub-charters, Sanat Gostar Kish Ltd. (SGK). 23. The C....
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....or claims that the disputes subsisting between the parties since August, 2016. 25. The Corporate Debtor further reiterated that due to fundamental breaches which of non-operation of vessel, the sub-charterer, SGK terminated the charter party on 31.08.2016, and that the Corporate Debtor himself has a claim against the Petitioner. Therefore, no monies are due and payable by the Petitioner as alleged. Further, the Corporate Debtor claimed that the Petitioner wrongly terminated charter party on 18.09.2016 on certain vague or invalid points. At the time of the termination of the charter party there were ongoing disputes in respect of the termination of charter party by the Petitioner. The Corporate Debtor has also specifically disputed the charter hire as claimed by the Petitioner vide email dated 19.09.2016, 28.09.2016, 05.10.2016, 07.10.2016 and 17.11.2016. In fact, the Corporate Debtor vide email dated 14.10.2016 forwarded their invoice No. DOEIL/OPS/2016-17/OP09003 dated 30th September, 2016, for the sum of US $ 400,767.31 for recovery of boarding and lodging, fuel cost, equipment hire, material supplied, manpower supplied during the maintenance and operations along with the detail....
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....he contents of the rejoinder and stated that the Petitioner did not perform his obligations under the charter party contract, which led to various disputes between the parties and consequently SGK terminated the contract. There is existing dispute between the parties and hence the Petitioner is not entitled to claim the amount of Rs. 7,05,91,755/-. The disputes were captured in the minutes of the meeting dated 19.08.2016 and that SGK terminated the contract on account of breach of the Petitioner. 30. Both the parties filed their written submissions after the parties were heard at length. The Petitioner argued that in pursuance of the charter party agreement, addendum 1 it was agreed that US $ 2,00,000 would be paid by the Corporate Debtor by issuing a letter of credit, due to delay in payment in advance there was a delay in delivery and preparation of the vessel and hence addendum 2 was drawn. The vessel was hired on chartered basis after due inspection by the surveyor and the Corporate Debtor inspection. The on-hiring survey was scheduled but it was put on hold as the Corporate Debtor's team could not visit the vessel. The Corporate Debtor delayed to take delivery of the vess....