TMI Blog2019 (5) TMI 1575X X X X Extracts X X X X X X X X Extracts X X X X ..... ng. Though no such letter of employment required to be issued by the Corporate-Debtor is on record, it is the admitted position that Respondent No. 1 joined the organization viz. Corporate Debtor and rendered meritorious services in her capacity as AGM (Legal). No proof has also been educed to substantiate the contention that she was paid on an adhoc basis from time to time for the matters in which she was engaged and that such engagement was terminated w.e.f. November, 2015. In absence of proof of recall of letter of offer of employment to Respondent No. 1, and subsequent engagement as Retainer, the contention raised by the Appellant on this score deserves to be outrightly dismissed as a pure concoction, more so as the documents on record in general and the Letter dated 27th December, 2016 emanating from the Director of Corporate Debtor referred to hereinabove stares in the face of the Corporate Debtor. The defence raised by the Corporate Debtor before the Adjudicating Authority and the version put forth by the Appellant qua the claim of Respondent No.1, can be termed only as an attempt to wriggle out of the liability to deny the legitimate and legally payable claim of Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f salary dues of ₹ 24,07,880/-. According to Respondent No. 1 there was no response to the demand notice from the Corporate Debtor and the demand in respect of outstanding salary dues not being complied with and the claim remaining unsatisfied, Respondent No. 1 filed application under Section 9 of I B Code before the Adjudicating Authority seeking commencement of Insolvency Resolution Process. The Adjudicating Authority after putting the Corporate Debtor on notice and according consideration to the mutually exclusive versions put forth by the parties qua the material aspects bearing upon initiation of Corporate Insolvency Resolution Process admitted the application seeking triggering of Corporate Insolvency Resolution Process at the instance of Respondent No. 1. The Adjudicating Authority found that the defence set up by the Corporate Debtor was spurious designed to avoid Corporate Insolvency Resolution Process and that such disputes were never raised prior to issuance of demand notice by the Respondent No.1. In arriving at such finding learned Adjudicating Authority appears to have been influenced by the admission in the letter dated 27th December, 2016 written by the Direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any improvement in performance, it was decided to terminate her services. Respondent No. 1 accepted termination of her services w.e.f. November, 2015 but strangely she shot two letters in December, 2016, one in regard to tendering of resignation and the other claiming the outstanding salary dues. Admitting that Respondent No. 1 has served the statutory demand notice dated 15th March, 2018 upon Corporate Debtor, it is contended that in response to the demand notice the Corporate Debtor has raised the dispute in regard to the alleged outstanding salary dues. It is contended that Respondent No. 1 initiated the Corporate Insolvency Resolution Process seeking payment of alleged Operational Debt despite existence of dispute with regard to the alleged Operational Debt. The impugned order is assailed on the grounds of non-conformity with the provisions of Section 8 and 9 of I B Code and failure on the part of Respondent No. 1 (Operational Creditor) to substantiate her claim. 4. Per contra, it is submitted on behalf of Respondent No. 1 that Respondent No. 1 had been appointed in terms of the Offer Letter at a gross annual salary of ₹ 10 Lakhs and she worked as AGM (Leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 8(1) of the Code. Under Section 8(2), the corporate debtor can, within a period of 10 days of receipt of the demand notice or copy of the invoice mentioned in sub-section (1), bring to the notice of the operational creditor the existence of a dispute or the record of the pendency of a suit or arbitration proceedings, which is pre-existing-i.e. before such notice or invoice was received by the corporate debtor. The moment there is existence of such a dispute, the operational creditor gets out of the clutches of the Code. In a later judgment titled in Mobilox Innovations (P) Ltd. v. Kirusa Software (P) Ltd. , (2018) 1 SCC 353 , the Hon ble Apex Court further observed as under:- 51. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the existence of a dispute or the fact that a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ves to be outrightly dismissed as a pure concoction, more so as the documents on record in general and the Letter dated 27th December, 2016 emanating from the Director of Corporate Debtor referred to hereinabove stares in the face of the Corporate Debtor. It is shocking that in the face of Director of Corporate Debtor eulogizing the role of Respondent No. 1 in regard to discharge of her duties, the Appellant raised the bogey of deficiency in performance of Respondent No. 1, which is a brazen faced attempt to demonize Respondent No.1 and deny her legitimate claim. It is apt to notice that aforesaid letter, apart from appreciating the role of Respondent No.1 for putting in her heart and soul to discharge duties is in reference to the claim for outstanding salary dues in terms of letter dated 23rd December, 2016 served by Respondent No.1 upon Corporate Debtor together with her resignation letter. The aforesaid letter nowhere disputes the claim of Respondent No.1 having discharged duties as AGM (Legal) in terms of Letter of Offer nor refutes her claim for deficiency of performance. It only expresses the inability of Corporate Debtor to immediately satisfy the claim of Respondent No. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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