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TMI Blog2019 (9) TMI 963X X X X Extracts X X X X X X X X Extracts X X X X ..... seen. However, in matters under Section 9, the tribunal is only to see that a dispute pre-exists and that the dispute is not vague, got up or raised for the first time to evade the liability. The documents on record clearly show that the dispute was raised by the respondent prior to the demand notice issued under Section 8 (1) of the Code. Section 9 (5) of the Code provides that adjudicating authority shall reject the application if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility - this application fails and the same is hereby rejected and dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... ause 12: Rental will be paid based on the daily log sheet duly signed by Corporate debtor's supervisor. Clause 23: The transport responsibility in Operational Creditor's scope, Corporate Debtor will arrange to provide the documents, check post/ RTO are responsibility of transporter. 9. The Corporate Debtor had hired the services of the transporter Pali Translines Pvt. Ltd. for the purposes of transportation of the crane from NTPC site to Nabinagar, Bihar. On 15.08.2017, the trailer carrying the cabin/car body of the Crane met with an accident at Kautti Kodarma JH, Madhya Pradesh resulting in toppling of the cabin/ car body of Crane and severely damaging the same. In addition to this, some of the other trailers carrying other parts of Crane stationed at the NTPC site also met with an accident. Consequently, an engineering company, Mcnally Bharat Engineering Company, working at the NTPC Site issued debit note of ₹ 1,30,000/- on behalf of NTPC on the Operational Creditor for repairing charges at various areas of the NTPC site damaged by their trailers. 10. The Operational Creditor requested the Corporate Debtor to transport the damaged parts of the Crane from the accident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness opportunities owing to stationing of Crane sent for lifting the damaged crane parts. The Operational Creditor has issued the demand notice dated 21.09.2018 under Section 8 of the Code, raising its demand for payment for an amount of ₹ 4,16,68,035/- along with 18% interest. 17. The Corporate Debtor vide its letter dated 29.09.2018 replied to the said demand notice dated 21.09.2018 issued under Section 8 of the Insolvency and Bankruptcy Code, 2016 and disputed the amount claimed by the applicant. 18. The applicant has stated that total debt due and payable by the Respondent to the applicant is ₹ 4,16,68,035/- (Rupees Four Crores Sixteen Lakhs Sixty- Eight Thousand and Thirty -five only) being monthly hire charges for 12 months amounting to ₹ 1,14,00,000/- and debit note of ₹ 1,30,000/- and revenue loss to the operational creditor amounting to ₹ 17,60,000/-, hence totaling to ₹ 4,16,68,035/- along with interest of 18% on the said amount. 19. The defence adopted by the Corporate Debtor is that Operational Creditor has no basis in contract or otherwise to claim the transportation of Crane since it is the responsibility of Operational Cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including employment or debt in respect of the payment of dues arising under any law for time being in force and payable to the Central Government any State Government or any Local Authority". Nowhere in the application any document has been produced to support that the alleged Work Order has been completed and the payment towards the same has become due and is unpaid as claimed by the applicant in part IV of Form No. 5. The claim made by the applicant in Form 5 titled as Repair/ Renovation/ refurbishment charges of the Crane, Monthly Hire charges as per standard rentals and Revenue loss to the operational creditor cannot be considered as 'operational debt'. The claim made by the applicant is untenable without any supportive evidence reflecting the performance of contract and completion of work as per the terms of Work Order. The claim made by the applicant that it being 'Operational creditor' as defined under Section 5(20) is totally unacceptable. 25. The corporate debtor has further submitted that debt is disputed and not payable as the Work Order has not been completed till date. Considering the arguments of the Corporate Debtor which primarily rests on the ground of a pre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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