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TMI Blog2022 (7) TMI 1246X X X X Extracts X X X X X X X X Extracts X X X X ..... record by the Corporate Debtor, the Operational Creditor had issued more than 100 CoFs from 25.08.2017 to 29.06.2019, 9 CoFs were issued by the Operational Creditor for the loss of shipments, and rests are issued for the damaged shipment during the transit. Copies of 21 CoFs issued by the Operational Creditor from 17.07.2018 to 13.12.2018 are also placed on record by the Corporate Debtor, out of 21 CoFs, 3 were issued for the loss of shipments during the transit. The Corporate Debtor sent a number of emails from 01.11.2017 to 24.08.2019 to the Operational Creditor for damaged/loss of goods during the transit by the Operational Creditor which was prior to the issuance of the demand notice dated 07.11.2019. The Hon'ble Supreme Court of India in the case of MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [ 2017 (9) TMI 1270 - SUPREME COURT ] has held that so long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the Adjudicating Authority has to reject the application. If it is considered that the Operational Creditor is not liable for damage of goods in view of the provisions of addendum dated 09.10.2017, but it is l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f demand notice and denied that there is a pre-existing dispute. 3. The Corporate Debtor filed its reply on 11.01.2021 and made the submissions which are summarized as under:- (i) There is no amount due to be paid to the Operational Creditor, and there is a pre-existing dispute which has already been pointed out to the officers of the Operational Creditor. Due to deficiencies of services of the Operational Creditor, the Corporate Debtor has suffered grave financial losses and it also adversely affected the goodwill and reputation of the Corporate Debtor. (ii) As per clause 13 of the Logistics Agreement dated 22.06.2017 (hereinafter referred to as Principal Agreement ), the Operational Creditor has indemnified the Corporate Debtor against any claims, injuries, damages, including all reasonable costs and expenses as a result of failure to comply with the service obligations by the Operational Creditor. The said clause in no way limits the liability of the Operational Creditor, the Corporate Debtor is indemnified by the Operational Creditor to the extent of any loss that the Corporate Debtor has suffered due to the deficiencies in services of the Operational Creditor. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t application is not signed by the authorized signatory of the Operational Creditor. The authority/Board resolution produced by the applicant has a validity for 6 months only and that had expired when the application was filed. 4. The Operational Creditor filed its rejoinder on 04.03.2021 and made the submissions which are summarised as under; (i) The Operational Creditor denied all averments made by the Corporate Debtor. As per clause 3 of addendum No. 1 dated 09.10.2017 (hereinafter referred to as Addendum dated 09.10.2017 ), it was expressly agreed by both the parties that the Operational Creditor will issue a CoF in favour of NSI Infinium Global Pvt. Ltd. ( Infinium Global ) at the request of the Corporate Debtor in case of any damage of goods and at the same time it was also specifically agreed that in any case, the Operational Creditor shall not be responsible for any financial liability against non-settlement of the claim or rejection of CoF or refusal to pay any amount against the damage to the Corporate Debtor on the part of Infinium Global. As per clauses 13 17 of the Principal Agreement dated 22.06.2017 the Corporate Debtor has no right to deduct the amount ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erational Creditor shall be responsible for any financial liability if the Insurance Company (Insurance Company -NSI Infinium Global Pvt. Ltd.) rejects the CoF and refuse to pay any amount against the damage. The parties have further mutually agreed to add clause 6 to the principal agreement that in case of loss/damage during delivery of the consignment (s) the Operational Creditor shall issue CoF in the name of Infinium Global only. For ready reference we reproduce clause 3 of the Addendum dated 09.10.2017 hereunder; 3. That as per the request of INFIBEAM LOGISTICS PVT. LTD, TCI EXPRESS LIMITED is agreed to issue COF (Certificate of fact) in favour of NSI INFINIUM GLOBAL PVT. LTD. However in no case TCI EXPRESS LIMITED shall be responsible for any financial liability, If, Insurance Company (Insurance Company of NSI INFINIUM GLOBAL PVT. LTD) reject the CoF and refuse to pay any amount against the damage. Accordingly, the parties hereby agree to incorporate the following clause No. 06 to the Principal Agreement. 6. COF (Certificate of Facts) The parties herein understand that INFIBEAM LOGISTICS PVT. LTD. is a logistics partner of NSI INFINIUM GLOBAL PVT. LTD. (h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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