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2022 (3) TMI 15 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAI BRANCHMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - position on contract - Purview of review - HELD THAT:- A Contract comes into existence, when the Terms and Conditions of the Contract were finalised. A proposal when accepted gives rise to an Agreement. The Agreement if reduced into writing and a document is executed between the parties, affixing their signature/thumb impression, such an agreement is to be a lawful one - It cannot be gain said that an offer is accepted when the acceptance is communicated. In reality, the communication is to be made to the offeror and a communication of acceptance made to a third person does not create a Contract. According to the Respondent, the Appellant/Operational Creditor was the CRM Manager, an important position of the branch and that many clients of the Respondent, who were availing the services of the Branch had abruptly cancelled their procedures under the influence of the Appellant/Operational Creditor. Which was poaching of clients, thereby causing huge loss to the Respondent/Corporate Debtor and, therefore, the Appellant is guilty of gross misconduct. In fact, the amounts which was to be refunded by the Corporate Debtor/Respondent is ₹ 2,13,000/-, during the period September 2018 to January, 2019 and that the Respondent/Corporate Debtor was seriously considering taking legal action for recovery of the amounts from the Appellant/Operational Creditor - the Respondent/Corporate Debtor denies the claim of the Appellant/Operational Creditor of ₹ 3,74,004/- together with interest @ 18% p.a. CIRP under I&B Code - HELD THAT:- The CIRP under the I&B Code, 2016 is not to be determined by a Court of Law. Further, CIRP is not an adversarial litigation. The proceedings under the I&B Code are summary in character. The Adjudicating Authority does not determine a Money Claim or Suit. I&B Code is not a Debt Enforcement Procedure. Purview of review - HELD THAT:- While scrutinising/examining a petition/application under the I&B Code, an Adjudicating Authority is to decide (a) whether there is an operational Debt as per Section 4 of the Code (b) whether the documentary material/evidence submitted alongwith the Application exhibits that the aforesaid Debt is Due & Payable and was not yet paid (c) whether there is an existence of Dispute between the Litigants/parties or the record of pendency of a Suit or Arbitration Proceedings filed by the receipt of Demand Notice of the unpaid Operational Debt pertaining to the Disputes - If anyone of the above aid stipulations is not there, then the Application is liable to be rejected. An Adjudicating Authority is required to adhere to the ingredients of Section 9 of the Code and especially, the requirement of Section 9(5) of the Act and admit or reject the application, depending upon the factors adumbrated under Section 9(5) of the Code. Role of Adjudicating Authority - HELD THAT:- An Adjudicating Authority is to find out whether the Dispute in issue needs further investigation and the said Dispute is not a weak one. To put it succinctly, if an Adjudicating Authority is subjectively satisfied that the Dispute in question is plausible one and was raised as specified under Section 8(2)(a) then the Adjudicating Authority as per Section 9(5)(ii)(d) is to reject the Application, filed by the Applicant praying for the initiation of Corporate Insolvency Resolution Process - In the instant case, as per Clause 13 of the Appointment Letter of the Appellant/Operational Creditor, the Employment may be terminated without notice or payment in lieu of Notice, in the event of any breach of any terms of the Contract. This Tribunal taking note of the surrounding facts and circumstances of the present case, in an holistic manner and on a consideration of contentions advanced on behalf of the Appellant, this Tribunal comes to an irresistible conclusion that there is an existence of Dispute relating to the Contract of Employment of the Appellant with the Respondent coupled with the breach and the Dispute in question is not an illusory or moonshine one - Appeal dismissed.
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