2023 (1) TMI 598 - AT - Insolvency & Bankruptcy
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - whether the debt meets the threshold limits of Rs. 1 crore or not - HELD THAT:- This Appellate Tribunal, observed that remuneration of Rs. 60,00,000/- p.a. has been clearly mentioned and the Resolutions further mentioned that this shall be the minimum remuneration payable to him in any financial year during his tenure where the company has no profits or its profits are inadequate, makes the position abundantly clear that the ₹ 2nd Respondent / Company, intended to pay Rs. 60,00,000/- p.a., to the ₹ 1st Respondent, without any conditionality, and was minimum payment per annum, even when the Company did not earn any Profit during the year.
These Resolutions are, therefore, crystal clear and leave no ambiguity, in establishing the fact, that the Appellant’s contention that, it was only ₹ 50% of the salary payment fixed to be paid, and the remaining 50% of the salary, as variable salary linked to his performance, is untenable and this fact is also corroborated from Form MR1, filed with RoC, where also Rs.60,00,000/-, has been indicated as minimum remuneration, payable to the ₹ 1st Respondent, in any Financial Year, during the tenure even when the ₹ 2nd Respondent / Company, does not have any profit.
This Appellate Tribunal also observed that proper demand notice under Section 8 of the I & B Code, 2016 was issued dated 11.05.2021 with all facts and figures including amount due and not paid which was not replied admittedly by the 2nd Respondent within 10 days. The Reply indeed was sent much later on 10.06.2021. Issue regarding pre-existing disputes was not established.
The documents filed with RoC, Board Resolution of the Appointment of the 1st Respondent, evidence from the Balance Sheet, issue of the Demand Notice not replied within 10 days, this Appellate Tribunal do not find any error, in the impugned order - application dismissed.