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TMI Blog2017 (11) TMI 1525X X X X Extracts X X X X X X X X Extracts X X X X ..... y of Rs. 17000/- per month along with House Rent 55% of basic salary per month, with PF, Gratuity, LTA etc. The appointment letter dated 7th May 2008 issued by the respondent company has been placed on record. 3. It is submitted that the operational creditor, was appreciated for his work by the respondent Corporate Debtor and the respondent company has revised/increased the salary package of applicant operational creditor continuously and consecutively in year 2009, 2010 and 2013 respectively. It is stated that in 2013 the salary package of operational creditor was enhanced from Rs. 11 lac to Rs. 14 lac (approx) per annum. 4. It is contended that since beginning the payment of salary was not systematic, unpunctual and the respondent was paying the salaries with some delays, as a result of which salaries got accumulated and ultimately debtor denied to pay the same to creditor. In other words the respondent was not paying the full salaries since 2008 and use to pay partial salaries to operational creditor. It is stated that a total sum of Rs. 46,77,124/- towards unpaid salaries has not been paid and is due from the respondent company. The applicant has also claimed interest @ 18% p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is submitted that as the amount claimed by the operational creditor is from May 2008, the claim of the operational creditor is barred by limitation. The other main objection raised is that there is an existence of dispute, as prior dispute is pending before Deputy Labour Commissioner, Gautam Budh Nagar. It is further alleged that the applicant is indulging in forum shopping. It is also the case of the respondent that the certificate furnished from bank is not in compliance as required under Section 9(3)(c) of the Code. Respondent further contended that the application is liable to be rejected as the respondent company is a serious solvent company committed to its cause and that different claims have been made by the applicant at different forums. 11. Heard the parties and we have perused the case records. 12. Applicant has furnished statement details showing salary dues, payments made by the respondent company and net amount due, year wise from 7th May 2008 to 31st July 2017 supported by appointment letter, pay slips/salary slips, statement of bank accounts showing salary deposits etc. Respondent company in its affidavit in reply filed on 14.09.2017 at Paragraph 15(a) submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f outstanding salary due to him comes within the definition of Operational Debt. Respondent company having admitted that Rs. 28,84,160/- is outstanding towards salary to be paid to the applicant clearly falls within the definition of Corporate Debtor. Since the respondent Corporate Debtor has admitted that Operation Debt to the tune of Rs. 28,84,160/- is outstanding to the applicant operational creditor, and there being default in payment of such amount, the application deserves to be admitted on that score alone for triggering Corporate Insolvency Resolution Process against the respondent Corporate debtor. 17. However before parting with, the objections raised by the respondent are discussed below: 18. In relation to the objection raised by respondent that the claim of applicant is barred by limitation, it is seen that the claim pertains to the period from 7th May 2008 to 31st July 2017. Therefore the entire claim cannot be termed as barred by limitation. As discussed at para 12 above the respondent has admitted that Rs. 3,59,529/- is due for the year 2017, Rs. 3,44,872/- is due for the year 2016 and Rs. 7,04016/- is due for the year 2015. These claims at least are clearly not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an unpaid employee who has made a complaint before the Labour department cannot move application under the Code for initiation of Corporate Insolvency Resolution Process against its employer. Once the respondent has committed a default in payment of applicant's dues and it exceeds rupees one lac and such default continues, he qualifies the requirement under Section 6 of the Code to lodge an application under the Code. 22. With regard to the objection on the quantum of claim made by the applicant it is pertinent to state here that this is not the forum to examine and adjudicate as to which portion of the claims are admissible as due and recoverable. This forum is not here to adjudicate as to how much is "due". In any case the respondent corporate debtor would be entitled to raise objection of any mismatching of claim before the committee of creditors/ resolution professional. The material issue for consideration before this forum is that the amount of debt should be at least one lac and a default in payment of such amount has been committed by the respondent corporate debtor. 23. As far as the objection regarding non-compliance of Section 9(3)(c) of the Code, it is seen that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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