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2018 (10) TMI 1765

..... nt in question, and the respondent, on the contrary made claim against the petitioner. Ultimately, the parties in the first instance have to reconcile their own statement of accounts before approaching the Tribunal to invoke provisions of IBC, 2016. The Petitioner, instead of finalising the disputed amounts, has filed the instant Company Petition on untenable grounds. The question of excess payment, and set-off as claimed by the respondent has to be examined in an appropriate proceeding in a case filed in accordance with the law, and the issue cannot be adjudicated in the instant Company Petition. There is a dispute with regard to debt in question, and thus it is not a fit case to admit - Application rejected. - C.P. (IB) No. 35/BB/2018 - 5-10-2018 - SHRI RAJESWARA RAO VITTANALA, MEMBER (JUDICIAL) AND DR. ASHOK KUMAR MISHRA, MEMBER (TECHNICAL) For The Petitioner : Shri Abhishek Dutta along with Sayli Petiwale And Shri Vaibav M. For The Respondent : Shri Uday Shankar R. M. along with Ms. Asmita Deshpande ORDER Per : Rajeswara Rao Vittanala, Member (J) 1. C.P.(IB) No. 35/BB/2018 is filed by M/s. Pedersen Consultants India Pvt. Ltd. ( Petitioner ) under Section 9 of the Insolvency and .....

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..... rating Officer's position were not suitable enough, however, interviews of the selected candidates were conducted for the said position. Further, the Respondent falsely stated in the reply that CV's for Head Project Finance position were not provided. Such defences taken by the Respondent are evidently moonshine defences. The issues raised in the said reply by the respondent are clearly a mere afterthought after the receipt of the statutory notice for demand. d. Thereafter, the Respondent has approached the Petitioner to settle the amount that it had paid towards the recruitment of VP-Head of Sales, however, the outstanding amount towards the recruitment of VP-Head of Sales were not demanded in the demand notice dated July 14, 2017. Therefore, the Petitioner served another notice of demand on November 28, 2017, to which no reply has been received from the Respondent. Hence, the present application is filed before this Hon'ble Tribunal. 3. The Respondent have opposed the application by filing Statement of Objection dated 08.05.2018 and the Statement of Additional Objection dated 14.09.2018, by inter alia, contending as follows: a. The instant Petition is not maintainable .....

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..... and in another e-mail dated 23.01.2017 claimed ₹ 25,79,800/- as due. Therefore, the Petitioner Company itself is in doubt as to what amount exactly was due. g. The respondent has recruited Mr. Mahesh Laxman, who was one of the shortlisted candidates recommended by the Petitioner for the post of Vice President-Commercial. Accordingly, he was paid. The Petitioner failed to provide suitable candidates for the position of Chief Operating Officer, Vice President-Finance. h. They have relied upon the judgment of the Apex Court in Mobilox Innovations (P.) Ltd. v. Kirusa Software Private Limited, and thus contended the Adjudicating Authority must reject the application under Section 9(5)(2)(d), if notice of dispute has been received by the Petitioner or there was a record of dispute in the information utility. The respondent has given a reply dated 20.12.2017. In response to reply dated 20.12.2017, by inter alia, stating that they have paid in full for the position of Vice President-Commercial and there was no outstanding amount due to it. The position of Chief Operating Officer, Vice President-Finance and CVs forwarded by them were not found suitable, and thus those positions are k .....

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..... has provided the resumes but they were not suitable for the Respondent and the Respondent is still waiting for the assignment to be completed by the Petitioner. In fact, the respondent has paid ₹ 3,43,500/- being 20% advance payable for the position but since the recruitment has not yet happened, it has adjusted the same against the appointment of VP Retail Commercial. It is contended that as against Invoice No. 1037/16 dated 27.06.16 for ₹ 5,17,560/-, an amount of ₹ 5,17,560/- is outstanding for code No. 2000178281(COO). In fact the respondent has paid ₹ 3,43,500/-being 20% advance payable for the position but since the recruitment has not yet happened it has adjusted the same against the appointment of VP Retail Commercial. n. It is contended that as against Invoice No. 1056/16 dated 17.08.16 for ₹ 3,22,000/-, an amount of ₹ 3,22,000/- is outstanding for code No. 2000278281 (Head Project Finance). The petitioner has provided the resumes but they were not suitable for the Respondent and the Respondent is still waiting for the assignment to be completed by the Petitioner. The Respondent paid an advance of ₹ 2,74,800/- and also adjusted an .....

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..... The additional documents filed by the respondent should not be taken into consideration with a defense raised by the respondent is moonshine defense. 6. The Learned Counsel for the Respondent has disputed the contention of the Petitioner and the debt in question is a disputed and has pointed the averments stated in additional Statement of Objections as briefly stated above. The case is covered by the Apex Court judgment rendered in the Mobilox Innovations (P.) Ltd. (supra). Therefore, this C.P.(IB) No. 35/BB/2018 is liable to be dismissed. 7. The above narration of facts discloses that there are various disputed question of fact with regard to the alleged debt and default raised in the petition. The contention of the respondent that the defense raised by the respondent is moonshine cannot be accepted. On the other hand, the Petitioner Company itself could not prove that the debt and default in question is beyond doubt. The Tribunal, cannot enter into enquiry with regard to the disputed questions, in a case filed under the IBC, 2016, which is summary in nature, and the issues to be primarily decided basing on the principles of natural justice. As stated supra, there are several clau .....

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