# In the matter of Santosh Shinde Vs. Fairmacs Shipping And Transport Services. CA(AT)(Insolvency) 798-2018 & 46-2019

> NCLAT judgment dated 2019-04-29. Citation: TCN-2019-NCLAT-00635. The case involves two Company Appeals (AT) (Insolvency) No. 798 of 2018 and No. 46 of 2019…

- **Court:** NCLAT
- **Order date:** 29 Apr 2019
- **Citation:** TCN-2019-NCLAT-00635
- **Category:** IBC
- **Source page:** https://caseease.in/cases/ibc/nclat-new-delhi/santosh-shinde-vs-fairmacs-shipping-and-transport-services-ca-756b3991

## Summary

### Background

The case involves two Company Appeals (AT) (Insolvency) No. 798 of 2018 and No. 46 of 2019 filed by Santosh Shinde against Fairmacs Shipping and Transport Services Pvt. Ltd. & Anr. The appeals challenge the order dated November 20, 2018, passed by the Adjudicating Authority (NCLT), Mumbai Bench, which admitted an application under Section 9 of the Insolvency and Bankruptcy Code (IBC) filed by Fairmacs Shipping & Transport Services Pvt. Ltd. (Operational Creditor) against the Corporate Debtor. The appellant contends that a pre-existing dispute existed, rendering the Section 9 application not maintainable.

## Facts

Fairmacs Shipping & Transport Services Pvt. Ltd. (Operational Creditor) filed an application under Section 9 of the IBC against a Corporate Debtor. The Adjudicating Authority (NCLT) admitted the application. Santosh Shinde (Appellant) filed appeals against this order, claiming a pre-existing dispute. The Appellant presented email communications as evidence of this dispute, specifically emails dated February 14, 2015, and February 9, 2015. These emails discuss issues related to bank guarantees, customs clearance, and alleged deficiencies in documentation. The Appellant argued that these communications demonstrate a dispute regarding the services rendered by the Operational Creditor. The Respondent contended that these emails do not constitute a pre-existing dispute.

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## Issues and analysis

### Issue 1: Whether a pre-existing dispute existed between the Appellant and the Respondent (Operational …

**Ratio:** The existence of a genuine pre-existing dispute, meaning a dispute raised before the

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**Reasoning:** The court examined the email communications presented by the Appellant. The court found

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**Interpretation:** The interpretation of 'pre-existing dispute' requires a genuine dispute raised

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**Application:** In this case, the court found that the email communications did not establish a

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## Parties

- **Judges:** S.J. Mukhop…; A.I.S. C…; +2 more
- **Appellants:** Santosh S…
- **Respondents:** Fairmacs Shipping…

## Timeline

- **2018-11-20 — NCLT Ord…**: The Adjudicating Authority (NCLT), Mumbai Bench, passed an order admitting an application…
- **2015-02-14 — Email Commun…**: Email communication between Tejas Kharade and Suresh Fairmacs regarding invoice, packing…

## Legal provisions

- [Insolvency and Bankruptcy Code, 2016, Section 8(1) — Insolvency resolution by operational creditor](https://caseease.in/legal-provisions/insolvency-and-bankruptcy-code-2016/section-8)

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