TMI Blog2017 (10) TMI 463X X X X Extracts X X X X X X X X Extracts X X X X ..... shed in the newspaper under Section 15 of the I&B Code and/or prior to completion of insolvency resolution process. This observation we are making so that in such case the 'corporate debtor' cannot take plea that earlier the application moved by workers' association/Trade Union in respect of such workmen/employee/legal heirs of deceased employees under Section 9 and the appeal under Section 61 have been rejected. In absence of any merit the appeal preferred at the instance of JK Jute Mill Mazdoor Morcha is dismissed with liberty to individual workman/employee to raise such claim, if there is a debt and default. - Company Appeal (AT) (Insolvency) No. 82 of 2017 - - - Dated:- 12-9-2017 - Mr. Mr. Balvinder Singh And Mr. S.J. Mukhopadhaya, JJ. For The Appellant : Mr Sanjeev Sen, Sr. Advocate, Mr Ashok Jam, Mr Ankit Kohli and Mr K ran Khanna, Advocates. For The Respondent : Mr Arvind Kumar, Advocate For The Interveners : Mr Abhijit Sinha, Mr Titash Sen, Mr Atanu Mukherjee, Mr Arjun Aggarwal and Ms Vaishali, Advocates JUDGMENT SUDHANSU JYOTI MUKHOPADHAYA, J. This appeal has been preferred by Appellant- JK Jute Mill Mazdoor Morcha (hereinafter referred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs' under Section 5 (20) of the I B Code since the 'corporate debtor' owed operational debt to its workmen and employees in respect of services, including employment, as per sub-section (21) of Section 5 of the I B Code. 8. It was also contended that the Trade union is a 'person' defined under Section 3, sub-section (23)(g) of the Trade Union Act and from collective reading of Section 3(23)(g) of the Trade Union Act with Section 5(20) and (21) of the I B Code, it is clear that the trade union being a 'person' the petition under Section 9 of the I B Code is maintainable. Reliance was placed on decisions of High Courts which relates to Trade Union Act, however, according to us they are not applicable to the provisions of the I B Code. 9. Ld. Counsel appearing on behalf of the Respondent/'corporate debtor' submitted that the application under Section 9 of the I B Code is not maintainable as no 'operational debt' is owed by the corporate debtors to the Appellant/Trade Union under sub-section (2) of Section 5. Further, according to Respondent, the Appellant/Trade Union does not fulfil the criteria under sub-Section (20) of Section 5 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... piry of prescribed period of 10 days from the date of receipt of demand notice. 14. 19 Interveners have intervened who claim to be the members of different Trade Unions of Respondent/'corporate debtor', this apart, some of them are widow, successor of the deceased workers. According, to them, inspite of repeated demands and reminders, the Jute Mill failed to make payment for realization of legitimate dues towards:- (i) Wage Deduction @ 10% of wages p.m as per MoU (ii) Overtime (iii) Provident fund (iv) Gratuity (v) Holiday Arrears (vi) Money deposited in company's society and savings, and (vii) Wage from the period since the factory has closed. It is stated that apart from that the minimum wages has also not been paid and total dues to the members of the Intervenors are more than ₹ 113.8 lacs. The details of period of lockout etc., has been shown. 15. Another Intervening Application has been filed by Ghanshyam Sarda who claim to be the co-promoter. According to him due to multiple litigations by the 'corporate debtor' under management of Govind Sarda, the Hon'ble Supreme Court earlier directed the BIFR to decide the issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim to be an 'operational creditor': - (i) The person who has claim in respect of provision of goods (supplied) to the 'corporate debtor'; (ii) Persons who have provided services to the 'corporate debtor', including those who are in employment; and (iii) Central Government, State Government and Local Authorities, who are entitled to claim debt in respect of dues arising under any Law for time being in force. 20. In view of definition aforesaid, while we hold that a workman or employee who has rendered services to the corporate debtor individually come within the meaning of 'operational creditor'. The Trade Union or Association of Workmen/employee, do not come within the meaning of 'operational creditor' as no services is rendered by the Workmen's Association/Trade Union to the 'corporate debtor' to claim any dues which can be termed to be 'debt' as defined in sub-Section (11) of Section 3, and reads as follows:- 3. In this Code, unless the context otherwise requires,- (11) debt means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and opera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unlike Section 7 before making an application to the adjudicating authority under Section 9 of the I B Code. Under sub-Section (1) of Section 9 of the Code, the right to file an application accrues after expiry often days from the delivery of demand notice or copy of invoice, as the case may be if the operation creditor does not receive payment from the corporate Debtor or notice of dispute under sub Section (2) of Section 8, the Operational Creditor only thereafter may file an, application before the Adjudicating Authority for the initiation of corporate insolvency resolution process. 18. An application under Section 9 of I B Code is required to be filed in such, format and manner and accompanied by such fee, as may be prescribed. The Operational Creditor along with the application is required to furnish documents as mentioned in clause (a), (b), (c) and (d) of sub-Section (3) of Section 9 of I B Code, and quoted below:- 9. Application for initiation of corporate insolvency resolution process by operational creditor - (1) After the expiry of the period often days from the date of delivery of the notice or invoice demanding payment under sub-section (1) of section 8, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l employee/workman who has rendered services to the 'corporate debtor' and if there is debt and default: such individual workman/employee can prefer an application under Section 9 giving details of debt and date of default but it should not be less than one lakh rupees in view of Section 4 of the I B Code. In such cases if corporate insolvency resolution process if started against the corporate debtor, it is always open to the other creditors, including workmen/employees, their legal heirs to file claim before the Insolvency Resolution Professional once notice is published in the newspaper under Section 15 of the I B Code and/or prior to completion of insolvency resolution process. This observation we are making so that in such case the 'corporate debtor' cannot take plea that earlier the application moved by workers' association/Trade Union in respect of such workmen/employee/legal heirs of deceased employees under Section 9 and the appeal under Section 61 have been rejected. 28. In absence of any merit the appeal preferred at the instance of JK Jute Mill Mazdoor Morcha is dismissed with liberty to individual workman/employee to raise such claim, if there is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
