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2021 (9) TMI 1381 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - service benefits payable to the petitioner on his superannuation - existence of debt and dispute or not - HELD THAT:- It is the very case of the petitioner that the amount of Rs. 16,80,877/- is due towards “gratuity”, “leave encashment”, and “LTC”, on account of superannuation that amounts to “service benefits” and not services and will not qualify under the definition “Operational Debt”. It is not the case of the petitioner that the above amount is due towards “salary” for the service rendered by him to the corporate debtor while he was in service. Of course, service benefits accrues out of rendering service but the intention and object of code is not “recovery” and is only “resolution” - the words “goods” and “services” used in the definition of “Operational debt” cannot be stretched to service benefits arising out of service. The words “goods” and “services” shall be interpreted to mean those that are necessary to keep the company as a going concern. This is also evident from exempting “goods” and “services” from the purview of moratorium declared under section 13 of the code. Therefore, the company petition is liable to be dismissed as the amount claimed by the petitioner does not qualify as on “Operational Debt”. It is also clear from the submissions of the corporate debtor which was not disputed by the petitioner that the petitioner did not accept the gratuity amount offered by the corporate debtor in the pending writ petition before the Hon’ble Bombay High Court when it was offered along with the other petitioners which is his own fault and therefore the question of resolution of Operational Debt does not arise, as no person shall be entitled to take advantage of his own wrong as per law. This bench is of the considered opinion that the there are no merits in the company petition and the same is liable to be dismissed - Petition dismissed.
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