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2022 (5) TMI 494 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - time limitation - HELD THAT:- There is no ‘specific approval’ either of the payment of arrears or of any ‘fixation of the MD’s remuneration’ or increase of his salary/perks. It is also relevant to note that there is no crystallised quantum of amount which can be claimed as salary/remuneration fived by the Board of Directors as contemplated under Section 196 of the Companies Act, 2013. The contention of the Learned Counsel Mr. Sharma that the cause of action did not arise till the dispute arose is untenable, keeping in view, that the claims date back to 2010 and there is no record of disputes having arisen at that point of time - the emails, the correspondence relied upon by the Learned Counsel for the Respondent do not give any definitive quantum of salary to have been accepted by way of any Resolution by the Board of Directors, to fall within the ambit of the definition of ‘acknowledgement of debt’ as contemplated under Section 18 of the Limitation Act, 1963. Therefore, this Tribunal if of the earnest view that the Section 9 Application filed on 27/08/2021is ‘barred by Limitation’ as the claims of Rs.96,92,000/- and Rs.18,00,000/- pertain to the period prior to 31/03/2016 and more than three years have lapsed since. Pre-Existing Dispute existing between the parties or not - HELD THAT:- It is seen from the record that the remuneration of the MD is a ‘disputed question of fact’. It is not within domain under IBC to ‘decide the issue of the fixation of the salary of the MD’, but to ascertain if there is any ‘Dispute’ regarding the issue. Having regard to the emails/correspondence and the Minutes on record, it is opined that the ‘Dispute’ raised is not a feeble legal argument nor is it a spurious one but one which is supported by evidence. The Adjudicating Authority has not addressed either to the question of claims having been time barred nor to the issue of the existence of a ‘Pre-Existing Dispute’ between the parties - Appeal allowed.
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