Amar Tours & Transport vs Gol Airlines (India) Ltd

M/s. Amar Tours & Transport ...Appellant

Versus

M/s. Go Airlines (India) Ltd. ...Respondent

Present:

For Appellant : Mr. Harshit Sanwal and Mr. Saurabh Upadhyay, Advocates

For Respondent : Dr. U.K. Chaudhary, Senior Advocate assisted by Mr. Meenesh Dubey, Mr. Abdesh Chaudhari, Ms. Manisha Chaudhary, Mr. Himanshu Vij, Advocates and Mr. Prasad M. Pathare, Dy. G.M. of Go Airlines (India) Ltd.

ORDER

08.05.2018 The appellant - M/s. Amar Tour & Transport (Operational

Creditor) preferred an application under Section 9 of the Insolvency and

Bankruptcy Code, 2016 (hereinafter referred to as the 'I&B Code') for initiation

of 'corporate insolvency resolution process' against the respondent - M/s. Go

Airlines (India) Ltd. (Corporate Debtor). By the impugned order dated 13th

February, 2018, the Adjudicating Authority (National Company Law Tribunal),

Principal Bench, New Delhi rejected the application on the ground of 'existence

of dispute'.

2. On notice the respondent has appeared and filed reply enclosing the

documents in support of 'existence of dispute'. 2

3. The Audit finding suggests that on 24th February, 2015, the official of the

'Corporate Debtor' highlighted to MD that there is an involvement of the

appellant in fraudulent activity raising false claims. On 25th February, 2015 a

team of finance, operations and legal constituted to find the fraudulent claim of

the appellant. After the investigation made, a meeting was convened at Mumbai

with the appellant wherein the respondent (Corporate Debtor) put to notice about

the investigation of the team. He was specifically confronted with the issues

relating to the fraudulent parking receipts, manipulating with the odometer etc.

The minutes of the meeting reads as follows:-

"Minutes of the meeting between GoAir and Amar Transport Services Delhi.

Date of the meeting : 25/05/15, Monday

Venue : Go Air Green Room, WIC

Members present :

Go Airlines (I) Ltd.

Mr. Joyakesh Poddar (GM Finance)

Mr. Rahebar Sheikh (Sr. GM Flight Ops)

Mr. Amit Kulkarni (GM Procurement)

Amar Transport Services

Mr. Amar Sharma (Proprietor)

"Points discussed:

The audit findings with respect to Audit report

submitted by DHC regarding Invoices raised by Delhi

Company Appeal (AT) (Insolvency) No. 115 of 2018 3

Transport vendor, was shared with Mr. Amar Sharma in

detail.

1. Parking Receipts submitted to GoAir: Mr. Amar

Sharma accepted that the Parking receipts submitted

by them are not genuine receipts. He also clarified

that all the parking payments are done by them in

cash and they do not get any receipts from the

landlords. Hence they have submitted such non-

genuine receipts.

2. Difference between Odometer reading and Log

Sheet Kms: Mr. Amar Sharma accepted that the

odometers of the cars have been tampered by them to

display less Kilometres. This has been done to get a

higher resale value of the cars. It has resulted in a

difference between the actual recorder Kms on the Log

sheets and the Odometer readings in the cars (the

odometer readings are showing much lesser Kms.

Compared to Log sheets).

3. Kms charged are excess compared to the actual

distance : Mr. Amar Sharma stated that the Kms are

charged based on a fixed "Km Chart" provided by

GoAir. However GoAir has clearly stated that there is

Company Appeal (AT) (Insolvency) No. 115 of 2018 4

no reference of fixed approved "Km Chart" mentioned

in the Agreement.

4. Separate Invoices raised for individual crew

even in the event of crew clubbing: This was

highlighted to Mr. Amar Sharma. Also Invoices raised

for non-roaster crew, same crew Invoiced twice and

Invoice raised for crew on leave were also highlighted.

Mr. Amar Sharma accepted that the crew is clubbed

whenever possible. However, he insisted that Go Air

is charged only as per actual transport facility

provided.

5. Non Availability of Go Air Logo on Cars : Mr. Amar

Sharma clarified that there is restrictions from Delhi

Authorities to display Logo on the windshields.

However, GoAir maintained that it was a part of the

contract and the issue about restrictions/permissions

to display Logo was never brought to the notice of

GoAir before.

6. Unavailability of GPS in Cars : GoAir highlighted

the observation raised in the Audit Report regarding

the unavailability of GPS system in cars. Mr. Amar

stated that all the cars are fitted with GPS system

and can be accessed at any point of time.

Company Appeal (AT) (Insolvency) No. 115 of 2018 5

7. GoAir insisted that all the above

explanations/clarifications be submitted in writing.

Mr. Amar Sharma agreed to send us a detailed e-mail

with all above clarifications required."

4. After admitting, the appellant tried to justify its activity the matter by the

email dated 25th May, 2015 as follows :

"From : Amar S [mailto: amar@jspexpress.in] Sent : 25 May 2015 18:15 To : Amit Kulkarni; Rahebar Sheikh

Subject :

Dear Sir,

There are few points that have been raised by you. I

would like to clarify them.

1. Parking receipts are not genuine.

We are paying parking to two defer end venders one is GMR

and other is our landlord. The landlord is not providing us

bill or receipt for the payments every month.

2. Odometer is not matching with log sheet km.

There will be difference in km between log sheet and

odometer because drivers after dropping or before pickup

he go to his home or other place for food some to get freshen

up & in last few months we have revised the odometers to

show the buyers less km done by the car to get good price

Company Appeal (AT) (Insolvency) No. 115 of 2018 6

while selling the cab. That km are not chargeable to GoAir

but yes it makes the difference in odometer & log sheet.

3. Fixed km.

Fixed km. has been provided to us by Go Air on that basis

we are charging you.

4. Clubbing & bill for clubbing

Yes we do clubbing which is possible at that time. We

charge 2 km. extra for per clubbing. This has been given to

us with fix km. sheet at the time we started this contract.

5. GPS.

Yes al the cabs which are operating for Go Air since we

have started this contract, & 100% working till today.

6. Logo at the cars.

When we have started the contract I have asked to take

permission by NDMC for logo otherwise they will challan

the cabs. Till today that permission has been not provided

by go Air.

Thanks with regards,

Amar Tours & Transport Delhi."

5. Learned counsel appearing on behalf of the appellant submitted that

subsequent to the aforesaid meeting and the reply, the respondents have

accepted that the bills are raised by the appellant. However, the documents

Company Appeal (AT) (Insolvency) No. 115 of 2018 7

shows that there is an 'existence of dispute' relating to fraudulent raising of bills

and for the said reason the Adjudicating Authority refused to entertain the

application.

6. We find no ground to interfere with the impugned order dated 13th

February, 2018. In absence of any merit, the appeal is dismissed. No cost.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice Bansi Lal Bhat ] Member (Judicial)

/ns/uk

Company Appeal (AT) (Insolvency) No. 115 of 2018