TMI Blog2018 (12) TMI 1677X X X X Extracts X X X X X X X X Extracts X X X X ..... n amount of ₹ 2,13,252/- (Rupees Two Lakhs Thirteen Thousand Two Hundred and Fifty-Two Only), which is alleged to be due in respect of certain fixed costs entitlement as stated in the Petition elaborately. 2. As far as the amount of ₹ 2,13,252/- is concerned, it has two components. One component is ₹ 1 ,637/-, and another component is ₹ 81,615/-. First component pertains to non-payment of the 'Car Allowance due to the Applicant as per the terms of his employment contract for the period 06.10.2016 to 28.02.2017 (i.e.,4.84 months), and second component represents the amount deducted ostensibly as 'Car Allowance' between March 2017 to May 2017 despite closure of car lease on 01.03.2017. The Applicant has also issued Demand Notice on 30.01.2018 claiming the above amounts on the following grounds: i. Part A of the debt arises from the fact that - of the four fixed cash elements payable monthly to the undersigned (as per the merit salary increase letter dated 06.06.2015) for the period October 2016 - February 2017, Wipro has paid only the BASIC component of ₹ 54,590/- per month regularly. Of the other three fixed cash elements, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions: a. As per Wipro's on-site assignment policy, the employees are eligible for basic and provident fund as Indian salary in Indian currency. In respect of an employee who travels abroad, the employee is eligible for full India salary after settlement of FTR. In the instant case, the Applicant returned from Japan on 05.10.2016, however, he settled the FTR on 28.02.2017, even though he is supposed to settle the FTR within a period of 15 days. Thereafter, Wipro paid the amounts along with March 2017 pay roll. The deductions made from every month 6th October 2016 to February 2017 was in accordance with law. As per Wipro policy, on-site assignees have to settle company's car lease before leaving India, failing which the car EMI shall be recovered and paid to the vendor. In the instant case, Applicant did not settle the car lease payment before leaving for Japan and as such, car EMI amount has been recovered from the Applicant pay roll and has been paid to the vendor. b. There is no amount whatsoever due from Wipro to the Applicant as claimed by him. In addition, thereto the notice is not in accordance with the Insolvency and Bankruptcy Code, 2016 and R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge his duty towards the Respondent, despite which the Respondent released certain payments which according to the Respondent was payable to the Applicant. There is no other amount whatsoever due to the Applicant from Wipro. In addition, a dispute is pending before the appropriate authority under IT Act, wherein, the Respondent claimed compensation of ₹ 50 Lakhs from the Applicant. Further, the Respondent has also filed a police complaint with regard to Applicant failed to return the laptop. 4. Apart from the stated position as above, the Respondent is also alleging that the Applicant has filed multiple applications and abusing the process of law calling for imposition of penalty under Sections 75 and 76 of the Code. The Respondent is vehemently opposing that any 'debt' is due, and has also made further submissions: a. it is submitted that the email carrying the said demand notice neither had any invoice of demand nor adequate calculations. It is mandatory that the notice must be issued to the persons as mentioned in the said Rule and non-compliance of the same will render the demand notice void. b. The Respondent submits that there has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mand notice issued by the Applicant, wherein the claim of the Applicant has been expressly denied and it has been clarified that there is no admitted debt or amount due to the Applicant by the Respondent. As stated supra, the Respondent pointed out that the Applicant had not settled the car lease payment before leaving for his assignment in Japan. The Applicant's contention that the deduction for car allowance should have been reversed along with salary for March 2017 is misconceived. e. The Respondent submits that there is no salary/wage that is due or payable to the Applicant and therefore there is no debt that is owed by the Respondent to the Applicant. Further, there is no default. It is pertinent to mention that the Applicant failed to comply with the Respondent's direction w.r.t. his conditions of employment and failed to report to work and finally resigned from services of the Respondent. f. The dispute as to whether the Applicant or Respondent has committed breach of contract is a disputed question of fact which cannot be adjudicated in the present Petition. The Applicant is not a workman, has no debt to claim and more so the Respondent has not def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the IVth ACMM at Bengaluru under Section 200 Cr.P.C. against the Applicant for the offences under Sections 378 and 406 of Indian Penal Code. It has also filed a Petition under Section 43 of the IT Act against the Applicant seeking compensation of ₹ 50 Lakhs from the Applicant for having illegally retained possession of the Respondent's laptops with a malafide intention to misuse the data unauthorizedly, and the same has been numbered as Complaint No. 1/2018. The competent authority vide order dated 17.04.2018 directed the Applicant to return the laptop within a period of seven days. However, the Applicant belatedly returned the laptops on 25.05.2018. After returning the two laptops, the accounts team credited a sum of ₹ 39,600/- to the account of the Applicant. It also submits that even though the litigation was pending between the parties, the Respondent has released the payment. i. The Respondent submits that the claim of the Applicant is bonafidely disputed by the Respondent and the Respondent has a valid defence. In addition, as stated supra, the Applicant is liable to pay ₹ 50 Lakhs. The Respondent has specifically pointed out that it is not li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he car allowance is not separately payable but stands merged with the Wipro Benefits Plan component of the salary. f. It also submitted that the fundamental requirements to initiate an insolvency resolution process are that there should be a default in payment/repayment and that there should be a debt . Section 6 of the Code shows that a financial creditor, operational creditor or the corporate debtor itself may initiate the insolvency resolution process only where any corporate debtor commits a default. Section 3(11) and 3(12) reads as under: debt means a liability or obligation in respect of a claim which is due from any person and includes afinancial debt and operational debt. default means non-payment of debt in whole or any part or instalment of the amount of debt has become due and payable and is not repaid by the debtor or the corporate debtor, as the case may be. g. The Respondent submits that there is no salary/wage that are due or payable to the Applicant and therefore there is no debt that is owed by the Respondent to the Applicant. Further, there is no default i.e. non-payment to the Applicant as alleged or at all. It is per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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