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2020 (3) TMI 1292 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - service of notice - service of notice - the Corporate Debtor claimed that the Notice period was required to be of two months and the Operational Creditor served only 1 month 5 days period and that Corporate Debtor was not liable to make payments as claimed - HELD THAT:- The record shows that the Operational Creditor had earlier sent a Notice under section 8 of IBC on 26th March, 2018 (Annexure A-8) and the Corporate Debtor had raised similar disputes in Reply dated 24th April, 2018 (Annexure A-9). Various disputes had been raised already till 24th April, 2018. The Operational Creditor gave up the earlier Notice sent under section 8 and on 26th March, 2018, the Operational Creditor sent yet another Notice under section 8 of IBC on 12th November, 2018 (Annexure A-10) and on basis of that Notice filed Application under section 9 before the Adjudicating Authority. Reason stated in the synopsis of that Application for not acting on the earlier Notice, was that the Operational Creditor is a person with limited means. The Application under section 9 of IBC based on Notice under section 8 dated 12th November, 2018 was thus instituted. There is more than sufficient record that there were pre-existing disputes regarding handing over of the charge and the entitlements before the Notice dated 12-11-2018 was sent. The learned Counsel for the Appellant has pointed out Leave Policy (Page - 68 of the Appeal) to say that the employee is not allowed to use balance unutilised leave while serving the Notice period. Disputes were raised even regarding performance incentive. The Appellant himself in the Notice (Annexure A-10) dated 12th November, 2018 stated that the Annual Performance Incentive was due on 10th May, 2017. He having resigned by Notice dated 11th March, 2017 and admittedly stopped attending after 15th April, 2017, has claimed ₹ 6 Lakhs against this head, without showing that the performance was found to be up to the mark. These are service disputes and we cannot enter into settling these disputes. The record shows that there were pre-existing disputes between the parties when Notice (Annexure A-10) was sent and Application under section 9 of IBC was filed. In this view of the matter, the Application under section 9 should not have been admitted as the disputes are service disputes which do not appear to be mere bluster. The Application under section 9 of IBC filed by Respondent No. 1 - Operational Creditor before the Adjudicating Authority is dismissed.
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