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TMI Blog2022 (5) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... h the Applicant had issued credit notes and raised invoices for on hire charges as per the terms of the agreement. Thus, as on date, out of the total of 40 containers for which DRV Invoices were issued, the Applicant has returned 19 containers and on account of the return of the containers and issuance of credit notes, the outstanding amount as regards the DRV Invoices was revised to Rs. 22,73,239.32/- (Rupees Twenty Two Lacs Seventy Three Thousand Two Hundred and Thirty Nine and Thirty Two Paise) and the revised interest amount was Rs. 3,70,538/- (Rupees Three Lacs Seventy Thousand Five Hundred and Thirty Eight). The details of transactions leading to the filing of this application as averred by the Applicant/Operational Creditor are as follows: i. That the Petitioner Company is into renting and leasing of containers. The Petitioner Company and Respondent Company entered into a Rental Lease Agreement for renting of certain marine cargo container equipments dated 1st January 2014. ii. That the Petitioner Company raised numerous invoices out of which 15 invoices were outstanding for renting of Containers being raised in the name of Maple Logistics Private Limited which was unpai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent. iii. That the Supreme Court had, in the case of Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan 2019 5 SCC 725 and Pioneer Urban Land & Infrastructure Ltd. Vs. Geetu Gidwani Verma & Anr. Consumer Case No. 238/2017, held that a builder cannot seek to bind a buyer with one-sided and unfair contractual terms of an Apartment Buyer's Agreement ('Agreement'). iv. That on 12.04.2019 the Respondent through email informed the Applicant that they are not using its containers and have offered container at different locations. The Applicant accepted containers only in 3-4 locations which resulted in delay in the handover process. As per the agreement under clause 2.2 the Lessor reserves the right to hire to Lessee containers that have not been picked up after 30 days from the date of the on-hire survey. v. That in term of the lease agreement as per clause (6), it was agreed between both parties that if the cost to repair the equipment exceeds the Depreciated Replacement Value (DRV), the equipment will be considered "destroyed". The Applicant arbitrarily and fraudulently increased the repair cost of the container to charge exorbitant DRV charges. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, let alone the fact that the Respondent has never ever raised the said issue prior to the filing of the reply. ii. That the judgment of the Hon'ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. vs. Govindam Raghavan and Pioneer Urban Land & Infrastructure Ltd. vs. Geetu Gidwani Verma & Anr. have no application to the present case, whatsoever, as the said judgment solely discusses the relationship between a homebuyer and a developer and does not apply to any other commercial transaction and relationship. iii. That the Applicant has raised the invoices strictly in terms of the terms and conditions agreed between the parties. As on 04.01.2019, a total of 65 containers were leased to the Respondent. Due to non - payment of the lease rentals since August, 2018, the Respondent was in breach of clause 2 of the General Terms and Conditions dated 01.01.2014 ("GTAC") and thus a notice for termination under Clause 19 of the GTAC was issued upon the Respondent on 04.01.2019. Having not received the total outstanding payment from the Respondent, the Applicant issued repeated reminders by way of emails dated 13.02.2019, 27.02.2019 and 11.03.2019. Thereafter, the Applicant i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missions of the Respondent has no relevance whatsoever. vii. That the Respondent has raised baseless contentions simply in order to deny its legal liability towards the Applicant. It is submitted that by way of email dated 12.04.2019, the Respondent had admitted its liability and sought time to return the containers and clear the outstanding amount on account of financial difficulty. The Respondent had never raised an issue as regards the ledger or the amount outstanding towards the Applicant and is raising the present frivolous allegations in order to mislead this Tribunal. The Applicant had shared its ledger with the Respondent by way of an email dated 01.07.2019 and the Respondent had not denied the same. On the contrary, the Respondent has made part payment and returned some containers thereafter. viii. That during the pendency of the present petition, the Respondent had further returned some containers to the Applicant, against which the Applicant had issued credit notes and raised invoices for on hire charges as per the terms of the agreement. Thus, as on date, out of the total of 40 containers for which DRV Invoices were issued, the Applicant has returned 19 containers a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is being confirmed by this Bench. He shall take such other and further steps as are required under the statute, more specifically in terms of Section 15, 17 and 18 of the Code and file his report within 30 days before this Bench. Mr. Vinod Radhakrshnan Nair has agreed to accept the appointment as the interim resolution professional and has signed a communication in Form 2 in terms of Rule 9(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 dated 30.10.2019. 2. Section 16(3)(b) of the Code mandate that the Resolution Professional proposed by the Operational Creditor shall be appointed as the Interim Resolution Professional (IRP) by the Adjudicating Authority (Tribunal) if no disciplinary proceedings are pending against him. Rule 9(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, require the proposed Interim Resolution Professional to make a declaration in Form 2 confirming his eligibility to be appointed as a Resolution Professional as well as a declaration confirming that no disciplinary proceedings are pending against him in the Insolvency and Bankruptcy Board or elsewhere. The proposed Interim Resolut ..... 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