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TMI Blog2022 (5) TMI 755X X X X Extracts X X X X X X X X Extracts X X X X ..... was replied by the corporate debtor by email dated 08.09.2020 raising a dispute with regard to liability of the corporate debtor on the amount of clearance charges paid by the third party buyer. There is no claim regarding the principal amount and the issue of contention is demurrage and detention charges. The corporate debtor has averred that detention and demurrage charges does not fall under the definition of operational debt under Section 5(21) of the Code. It clearly reflects that a dispute was in existence prior to issuance of the statutory demand notice under Section 8 of the Code by the applicant. There is sufficient evidence to prove the existence of dispute. The instant application cannot be considered for admission and needs to be rejected - The instant application stands rejected and disposed of. - Company Application No. CP (IB) 20/NCLT/AHM/2021 - - - Dated:- 29-4-2022 - Dr. Deepti Mukesh , Member ( J ) And Ajai Das Mehrotra , Member ( T ) For the Appellant : Manasa , Advocate For the Respondents : Natasha Shah , Advocate ORDER 1. This application is filed under Section 9 of Insolvency and Bankruptcy Code, 2016 (for brevity 'IBC, 2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the distribution of paper products, with the corporate debtor. Subsequently, vide a novation agreement dated 01.04.2019, and an addendum to the Distribution Agreement with the effective date of 01.01.2019, the applicant had assumed the rights and obligations under the said Distribution Agreement towards the corporate debtor. Pursuant to the distribution agreement, the corporate debtor had raised purchase orders on the applicant for the supply of products. The standard practice followed by the applicant with respect to all its distributors and customers located in India, including the corporate debtor was that against the purchase orders placed by the corporate debtor, pro forma orders as confirmation from the applicant were issued. This was followed by a sales confirmation issued by the applicant outlining the final pricing, payment terms, shipping and delivery terms etc. Once the sales confirmation is sent, the applicant would, in turn, place purchase orders for the same products and arrange for importing the products to India on High Sea Sales ( HSS ) basis. Separate High Sea Sales agreements were also executed between the applicant and the corporate debtor for each order. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in India, however, the corporate debtor failed to clear the products from the container freight stations. On account of such delay/failure in clearing the cargo, the container freight stations issued demand notice to the applicant demanding to clear the products/cargo. Aggrieved by the inactions and failure to clear the financial obligations by the corporate debtor in spite of timely delivery of the products, a legal notice dated 08.09.2020 was issued by the applicant, however, no payments have been made till date. Vide a short reply dated 12.09.2020, sent via email, the corporate debtor has merely communicated that it has presumed that the liability towards such charges has been waived by the applicant. Further, no claim has been raised by the corporate debtor about the quality or quantity of the products supplied by the applicant. 9. The applicant states that as per the distribution agreement and the HSS agreements the corporate debtor has failed to make the payments. Therefore, the applicant issued statutory demand notice under Section 8 of the Code dated 12.11.2020 calling upon the corporate debtor to pay the outstanding amounts. The corporate debtor vide its reply dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us was released from all the obligations in relation to the said transaction. It is only upon payment of entire amount the applicant gave written instructions to execute the documents for the purpose of delivery to third party - Hero Multi Pap Private Limited; No demand notice or debit note of any nature was raised in relation to the transaction till 08.09.2020. Despite clarifying raising dispute by the corporate debtor, demand notice was issued and the applicant preferred the present application; To pursue recovery of amounts, the applicant sent demand notice on the corporate debtor dated 12.11.2020; Delivery of 14 shipments has been duly taken by Hero Multi Pap Private Limited (Hero MPPL) subject to the clearance of material from the respective container freight stations and payment of the same has been duly made by them to the applicant; Though there was little delay in making payment by the corporate debtor, none of the shipments were unpaid. The payments against the goods supplied were made either by the corporate debtor or by the third party Hero MPPL; Till date applicant never raised any debit notes nor sent any communication regarding pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll as HSS agreements the Corporate debtor had agreed to pay detention charges and demurrages imposed on account of delayed clearance of products from the concerned container freight stations; As per the agreed terms of the HSS agreements the shipping charges incurred, if any, on the high sea sales of the products, the entire clearance charges viz. customs duties, clearing charges, demurrage, etc. is payable directly to the customs and clearing and forwarding agents were clearly and unequivocally agreed by the corporate debtor; No reasons have been provided by the corporate debtor anywhere in its counter for the delay in clearing the products and no document has been produced to show that the applicant has waived off the detention charges and demurrages for such a long period of delay; The corporate debtor vide its emails dated 11.01.2020, 06.02.2020 and 11.03.2020 had admitted the delay in clearance of cargo and payment obligation towards detention charges and demurrages; On account of the inaction of the corporate debtor, the applicant had assisted in searching for another buyer and the products were diverted by the corporate debtor to Hero MPPL; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearance of 14 shipments by Hero MPPL, a sum of Rs. 9,23,257/- towards interest on account of the corporate debtor's failure to pay the invoices and Rs. 1,20,00,000/- towards the estimated detention and demurrage charges for the non-clearance of one shipment of three containers. The said legal notice was replied by the corporate debtor by email dated 08.09.2020 raising a dispute with regard to liability of the corporate debtor on the amount of clearance charges paid by the third party buyer. Demand notice issued under section 8 of the Code in form 3 dated 12.11.2020 is also replied by the corporate debtor clarifying that delivery of 14 shipments has been taken by the third party buyer and payment has been made by them after adjusting 10% advance payment. 19. There is no claim regarding the principal amount and the issue of contention is demurrage and detention charges. The corporate debtor has averred that detention and demurrage charges does not fall under the definition of operational debt under Section 5(21) of the Code. As discussed above, it clearly reflects that a dispute was in existence prior to issuance of the statutory demand notice under Section 8 of the Code by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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