TaxTMI 
TaxTMI 
2026 (6) TMI 65
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....rties pertains to liability towards freight charges, demurrage charges and anchorage charges arising out of shipment of iron ore cargo from Redi Port in India to Rizhao Port in China. A Charter Party Agreement was executed between the Appellant/RKB Global Limited and Jaldhi Overseas Pte. Ltd. for transportation of iron ore Both the Appellant/RKB Global Limited as well as the Respondent/Tulip Polychem Private Limited had loaded their respective consignments on the same vessel M.V. Sun Lucia. The freight invoice for the consolidated cargo came to be raised upon RKB Global Limited because the Charter Party Agreement stood in its name. 2. Aggrieved by the impugned order the Appellant contends impugned order overlooks material documentary evidence; commercial correspondence; payment records; debit notes; settlement terms; and admissions already recorded before this Tribunal in earlier appeal. Brief Facts of the Case 3. The facts relevant for deciding this appeal are as given below: (i) The Appellant executed a Charter Party Agreement on 22.04.2019 with Jaldhi Overseas Pte. Ltd. whereby a vessel M.V. Sun Lucia was chartered for transportation of 50,000 WMT of iron ore f....
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....f the outstanding freight invoice. Most significantly, Clause 7 of the Settlement Agreement specifically recorded and acknowledged by Jaldhi Overseas Pte. Ltd. that no payment had been received from the present Respondent, namely Tulip Polychem Pvt. Ltd., under the Charter Party arrangement and that the Appellant would remain at liberty to recover freight, demurrage and anchorage charges from the Respondent. (vii) Pursuant to the said Settlement Agreement, this Appellate Tribunal by Order dated 05.02.2024 in Company Appeal (AT) No. 237 of 2024 took the settlement on record and set aside the earlier insolvency order passed against the Appellant. The Appellant has relied upon this Order and the admissions contained in the Settlement Agreement to contend that the Respondent's liability already stood recognised by the parties and recorded before this Tribunal. (viii) Following execution of the Settlement Agreement and payment of dues to Jaldhi Overseas Pte. Ltd., the Appellant issued Debit Notes dated 06.02.2024 bearing Nos. RKB/DN/01-23-24 and RKB/DN/02-23-24 upon the Respondent claiming reimbursement of freight charges amounting to Rs. 2,63,80,074/- and demurrage/an....
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....s submitted that both the Appellant and the Respondent were independently liable to pay freight charges corresponding to their respective consignments transported through the said vessel. 5. Ld. Counsel further submits that Jaldhi, on oath and by way of Affidavit before this Hon'ble Tribunal, has categorically admitted that it had received freight charges from the Appellant, but had not received any freight charges from the Respondent. The said statement of Jaldhi has already been recorded by this Hon'ble Tribunal in its Order dated 05.02.2024 passed in Company Appeal (AT) (INS) No. 237 of 2024. It is submitted that the Respondent has never challenged the said Order and, therefore, the findings recorded therein have attained finality against the Respondent. Reference in this regard has been made to the Additional Affidavit filed by the Appellant dated 03.03.2026. 6. He submits that Clause 7 of the Settlement Agreement executed between the parties clearly records that Jaldhi Overseas Pte. Ltd. confirmed and declared that it had not received any payment from Tulip Polychem Pvt. Ltd. under the Charter Party Agreement and further clarified that nothing in the Settlement Agreement....
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....ntiate such payment. In absence of such documents, the Respondent cannot be permitted to continue making assertions contrary to the material on record. 10. Ld. Counsel stated that the Adjudicating Authority has further held in the Impugned Judgment that the Respondent had failed to place on record any material to show that either the Respondent or the purchaser was required to directly pay freight charges to Jaldhi bypassing the Appellant. The Adjudicating Authority further recorded that the contractual arrangement with Jaldhi existed only with the Appellant and not with the Respondent. Counsel for the Appellant submits that these findings clearly establish that the Appellant alone had chartered the vessel and was liable towards the ship owner, whereas the Respondent remained liable to reimburse freight charges corresponding to its cargo shipment. 11. It is submitted that since the Charter Party Agreement was executed between Jaldhi and the Appellant, Jaldhi subsequently assigned the debt owed by the Respondent to the Appellant under the Settlement Agreement dated 02.02.2024. Counsel for the Appellant submits that such assignment became necessary because the Respondent failed....
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....wner or towards the Appellant who had chartered the vessel. Since no proof of payment was produced by the Respondent, the Appellant submits that there was no occasion for the Adjudicating Authority to dismiss the Section 9 Application on the ground that disputed facts required investigation. 15. Regarding the third finding of Ld. Adjudicating Authority relating to pre-existing dispute between the parties, Ld. Counsel submits that this finding is equally erroneous. It is submitted that there existed no dispute whatsoever between the Appellant and the Respondent prior to issuance of the Statutory Demand Notice. In fact, the Respondent itself had taken the stand before the Adjudicating Authority that there was no direct contractual relationship or privity between the Appellant and the Respondent. It is submitted that the alleged dispute was raised for the first time only in reply to the Statutory Demand Notice issued by the Appellant. Consequently, such dispute cannot be treated as a genuine pre-existing dispute within the meaning of the Code. 16. It is further submitted that during the course of hearing before this Appellate Tribunal, counsel appearing for the Respondent attemp....
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..... Assets Care and Reconstruction Enterprises & Ors., Company Appeal (AT) (INS) No. 1449 of 2022" decided on 13.12.2022, has already held that under the IBC, assignment of debt by a Corporate Creditor is legally permissible and that the Assignee steps into the shoes of the original Corporate Creditor and is fully entitled to initiate CIRP proceedings against the Corporate Debtor. 20. In light of the aforesaid facts and circumstances, Ld. Counsel submits that the Adjudicating Authority committed grave error in dismissing the Section 9 Application filed by the Appellant despite the categorical denial by Jaldhi that it had received any freight charges from the Respondent, which fact already stands recorded by this Appellate Tribunal in its Order dated 05.02.2024. He submitted that by dismissing the Application, the Adjudicating Authority has effectively disregarded the binding effect of the Order passed by this Appellate Tribunal dated 05.02.2024. Concluding his submissions, Ld. Counsel prays allowing the appeal and setting aside the Impugned Order dated 19.12.2025. Submissions of the Respondent 21. Ld. Counsel for the Respondent submitted that the present Appeal arises from t....
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....rage charges aggregating to Rs. 3,24,01,185/-, followed by letter dated 23.03.2024 and demand notice dated 06.05.2024. Tulip replied on 16.05.2024 clearly stating that freight and related charges had already been paid on its behalf through BST (HK) Limited and Globechart in 2019 itself. 26. He submits that the Respondent's case is supported by three contemporaneous documents, namely: (i) the Globechart declaration confirming payment of USD 470,575 on behalf of Tulip; (ii) the email dated 16.06.2019 from BST (HK) Limited stating that Globechart had paid USD 470,000 on behalf of Tulip as freight; and (iii) the invoice dated 19.06.2019 issued by Jaldhi showing deduction of USD 470,575 from the total freight amount. These documents collectively establish that freight attributable to Tulip's cargo stood discharged in 2019 itself. 27. Ld. Counsel further submits that the Appellant has alleged that the email dated 16.06.2019 relied upon by Tulip was fabricated and that the payment of USD 470,575 was actually made on behalf of the Appellant. However, he submitted that these allegations themselves demonstrate existence of a serious and substantial factual dispute. 28. It is his sub....
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..... Counsel submits that Tulip, in its reply dated 16.05.2024 to the demand notice, clearly asserted that freight and related charges had already been paid to Jaldhi through BST/Globechart on Tulip's behalf. In response, the Appellant merely alleged fabrication of the email dated 16.06.2019 and relied upon rival email chains, clarificatory emails and internally generated SWIFT and ledger entries to contend otherwise. 34. He further submits that these rival factual assertions create a serious and fact-intensive dispute requiring forensic examination of electronic and banking evidence, which falls completely outside the limited scope of Section 9 proceedings. Counsel relied upon the judgments of the Hon'ble Supreme Court in "Mobilox Innovations Pvt. Ltd. v. Kirusa Software Pvt. Ltd., (2018) 1 SCC 353", "Kay Bouvet Engg. Ltd. v. Overseas Infrastructure Alliance (India) Pvt. Ltd. (2021) 10 SCC 483" and "Transmission Corporation of A.P. Ltd. v. Equipment Conductors and Cables Ltd. (2019) 12 SCC 697" to submit that where genuine disputes exist, the Insolvency and Bankruptcy Code cannot be used as a debt recovery mechanism and a Section 9 application must be rejected. ANALYSIS AND FIN....
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....ght." The Respondent has pointed out that this email was marked to representatives of Jaldhi and that the contents of the email were never disputed at the relevant point of time. The Respondent has also relied upon a declaration issued by Globechart wherein it was stated that payment of USD 470,575 had been made to Jaldhi on authorization of Tulip Polychem Pvt. Ltd. towards freight, demurrage and anchorage costs for cargo shipped by the Respondent. 41. Both the Appellant and Respondent have relied upon the Invoice dated 19.06.2019 issued, by Jaldhi the same is extracted below:- 42. The aforesaid Invoice records total freight of USD 894,765.88 and simultaneously reflects deduction of USD 470,575 under the heading "less received", leaving the balance amount payable by RKB Global Limited. The Respondent has relied upon this document to contend that the deduction corresponded to the payment already made on behalf of the Respondent and the same has been confirmed to the Jaldhi vide the email dated 16.06.2019 sent by BST wherein it was specifically stated that Globechart had paid USD 470,000 "on behalf of Tulip Polychem Pvt. Ltd. as freight. 43. At the same time, the Appellant h....
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....th Jaldhi in the year 2024. The Respondent has therefore alleged that the present claim is itself disputed and arose only after the Appellant settled its own liability with Jaldhi. 49. These circumstances show that the dispute between the parties was not created artificially as a mere defence to the Section 9 proceedings. The material on record demonstrates that the controversy relates to the underlying transaction itself and existed much prior to issuance of the demand notice. 50. The Appellant has also argued that the Respondent admitted liability by stating in its reply to the demand notice that freight charges had been paid to Jaldhi. However, the Respondent's stand throughout has been that the freight liability stood discharged in 2019 itself through BST/Globechart on its behalf. Such a defence cannot be treated as admission of a subsisting operational debt. Rather, it reinforces the existence of a dispute regarding whether any amount remained payable at all. 51. The Appellant has relied upon the judgment of this Appellate Tribunal in "Siti Networks Limited v. Assets Care & Reconstruction Enterprises Ltd. & Ors., Company Appeal (AT) (Insolvency) No. 1449 of 2022", dec....
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....vations Private Limited v. Kirusa Software Private Limited, (2018) 1 SCC 353", which explains the scope of enquiry under Section 9 of the Code and held that where the Corporate Debtor raises a plausible contention requiring further investigation, and the dispute is not spurious, hypothetical or illusory, the Adjudicating Authority must reject the Section 9 Application. The Hon'ble Supreme Court clarified that the IBC is not intended to decide disputed contractual claims requiring detailed adjudication. In the present case, the Respondent has relied upon contemporaneous documents including emails, declarations and invoices of the year 2019 to contend that freight charges attributable to its cargo had already been paid through BST/Globechart. At the same time, the Appellant disputes the authenticity and interpretation of those documents. Thus, the dispute raised between the parties clearly requires detailed examination of facts and evidence, which cannot be undertaken in summary proceedings under Section 9 of the IBC. 57. Further the Hon'ble Supreme Court in "Kay Bouvet Engineering Ltd. v. Overseas Infrastructure Alliance (India) Private Limited, (2021) 10 SCC 483", reiterated tha....