TMI Blog2019 (7) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... thus it is liable to be dismissed. Appeal dismissed. - C.P. (IB) No. 143/BB/2017 - - - Dated:- 12-3-2019 - MR RAJESHWARA RAO VITTANALA, MEMBER (JUDICIAL) AND MR ASHOK KUMAR MISHRA, MEMBER (TECHNICAL) For The Petitioner : Ms. Maria Joseph For The Respondent : Shri Abheek Saha ORDER Per : Rajeswara Rao Vittanala, Member (J) 1. C.P.(IB)No.l43/BB/2017 is filed by Ms. Rohita (Petitioner/Operational Creditor) u/s 9 of IBC, 2016, U/R 6 of I B (AAA) Rules, 2016, by inter alia seeking to initiate Corporate Insolvency Resolution Process (CIRP) in respect of M/s. All That Hype Media Private Limited (Respondent/Corporate Debtor), on the ground that the Corporate Debtor committed a default of amount of ₹ 7,95,403/- (Rupees Seven Lakh Ninety Five Thousand Four Hundred and Three Only). 2. Brief facts of the case, as mentioned in the Company Petition, which are relevant to the issue in question, are as follows: 1) Ms. Rohita (hereinafter referred as Petitioner/Operational Creditor), has been in the digital marketing industry for 7 years and has won awa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ational Creditor that the process had been initiated and that it would take some to complete the formalities. The Operational Creditor received mails from the Directors of the Company showing that the process to appoint her as a Director of the Company had begun and the paperwork for the same was being undertaken. Trusting the Corporate Debtor, the Operational Creditor did not press for completion of the formalities. 6) In or around in the month of June 2016, Ms. RuhiFazila Shaik, the Director of the Corporate Debtor, citing personal reasons, informed the Operational Creditor that she intended to shut down the Company and wanted to focus on her blog. The Operational Creditor reluctantly agreed to the same as the Operational Creditor was left with no other alternative. The Operational Creditor was also promised severance pay of three months salary apart from the share of profits due as settlement of all accounts. 7) The Corporate Debtor unilaterally decided July 31st, 2016 would be the Operational Creditor s last day at the Company. The Operational Creditor was compelled to accept the same as the Operational Creditor was left with no alternative. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,000/- as full and final settlement of all dues without giving any justification regarding its offer. It is asserted that the Corporate Debtor be declared as Insolvent and Bankrupt and its continued existence is harmful for the business community in general. 3. The Respondent/Corporate Debtor has filed a Written Statement dated 27.03.2018, by inter alia contending as follows: 1) It is stated that All that Hype Media Pvt. Ltd. is a well reputed Company and is having a very large clientele and among others, is engaged in providing services of content creation and content distribution services. They have denied each and every statement or contention which is inconsistent with or contradictory to whatsoever is stated in this written statement, and no statement, or contention, not specifically denied by the Corporate Debtor, shall be deemed to have been admitted, merely for want of a specific traverse. 2) The Legal Notice received from the Operational Creditor, which though not a notice under Section 8 of the I B Code, 2016, it was immediately replied on 24th March, 2017 by disputing her contentions and claims. 3) The C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on time. 7) Subsequently, Mr. Gautham Reghunath decided to quit from the operational role within the Company during March, 2016 leading to reduce the business. Therefore, the Operational Creditor, voluntary started considering alternatives and eventually terminated her engagement with the Company during June, 2016. Accordingly, she was also was also paid salary for months of June and July, 2016 purely out of a goodwill gesture even though there were no legal obligations on the part of the Company or their Directors to make such payments. That after a lapse of considerable time and without any evidence, the petitioner started making claims untenable grounds and filed the instant petition by abusing the process of law for illegal gains and to harass the Corporate Debtor and their Directors. 8) The Operational Creditor invested her time in the Company at her own will and her engagement or the terms thereof (including grant of 20% ownership of a fixed salary) as alleged by the Operational Creditor was never formalized under any agreement between the Operational Creditor and the Corporate Debtor. It is alleged that the Corporate Debtor also suffered mul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application. 4. Heard Ms. Maria Joseph, learned Counsel for Petitioner and Shri Abheek Saha learned Counsel for Respondent. We have carefully perused the pleadings of both the party and extant provisions of the Code and the law. 5. Ms. Maria Joseph, learned Counsel for Petitioner, while reiterated various averments made in the pleadings raised on behalf of the Petitioner, as further submitted that the Petitioner has generated tremendous revenue and became and profit-making enterprises basing on the assurance has been given. The E-mail sent by the Respondent shows that the Company was processing to appoint her as a Director. The services of Petitioner was terminated on 31st July, 2016. Therefore, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w footing and unless other party agrees it, it cannot have evidentiary value and more so in financial issues. The Petitioner has also relied upon E-mail dated 20th May, 2016 in the Legal Notice dated 25th September, 2017, in support of the case. Moreover, admittedly, there is no valid Contract/agreement entered into between the parties to accrue any legal right to the petitioner to recover the alleged amount from the Respondent. As stated supra, there is serious dispute raised by the Respondent even before issuing notice under the Code. Therefore, as per oral understanding between the parties, the petitioner was paid salary/remuneration for the months of June 2016 July, 2016, purely out of goodwill without any legal obligation. On the other hand, the Respondent has claimed that they have suffered losses of ₹ 50,00,000/- due to defective service of petitioner. Therefore, disputes questions of facts and rival claims cannot be adjudicated in a summary proceedings like proceedings under the Code. 8. It is a settled position of law that the provisions of Code cannot be invoked for recovery of outstanding amount but it can be invoked to initiate CIRP for justified ..... X X X X Extracts X X X X X X X X Extracts X X X X
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