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2018 (10) TMI 1765

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..... HRA, 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 Bankruptcy Code, 2016, read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, by seeking to initiate Corporate Insolvency Resolution Process in the case of M/s. Nitesh Estates Limited. 2. The brief facts of the case are as follows:- a. M/s. Pedersen Consultants India Pvt. Ltd., the Petitioner herein, is a private limited company incorporated on July 13, 2010. The Petitioner is the Indian branch of a leading international executive search firm. M/s. Nitesh Estates Limited, the Respondent is a public limited company incorporated on February 20, 2004, engaged in the real estate business. The Petitioner and Respondent had been dealing with each other since 2016. b. The Respondent had engaged the Petitioner to provide executive search services for the position of Vice President .....

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..... o 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 since there is dispute raised in respect of the subject matter of the Petition and petitioner Company itself has to return the excess money paid. b. The Petitioner was supposed to provide executive search for position of Vice President-Commercial, Vice President-Sales, Chief Operating Officer and Head Project-Finance. However, the Petitioner provided the services only for the executive search for Vice President-Commercial. So suitable candidates for appointment for the post of Chief Operating Officer and Head Project-Finance were not provided by the Petitioner and their posts are still vacant. c. The Respondent appointed a candidate Mr. Rajit Gupta on the recommendation of the Petitioner for the position of Vice President-Sales on 05.12.2016. The services of Mr. Gupta were terminated, on being found that he has filed fo .....

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..... ent 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 kept on hold. Mr. Rajit Gupta was terminated, due to submission of forged documents, w.e.f. March, 2017. It is further stated they have issued two notices dated 14.07.2017 and 28.11.2017. As per Clause 8 of the Agreement in question, the total fees for recruitment be fixed fee and the amounts At the time of signing 20% of fixed fee Upon presentation of shortlisted candidates 30% of fixed fee When candidate signs offer letter 50% of fixed fee i. The amounts payable as per the agreements entered as follows: S. No. Positions given to Pedersen 20% of fixed fee while signing agreement 30% of fixed fee on first shortlist Balance to be paid on releasing the offer to candidate 1. VP-Retail Commercial 2,74,800 4,14,000 6,90,000 2000478281 2. VP-Sales 2,76,000 4,14,000 6,90,000 2000578281 3. Chief Operating Officer (COO) 3,43,500 5 .....

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..... or ₹ 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 amount of ₹ 14,43,320/- paid as advance for other 3 positions on previous invoices raised by petitioner against the amount payable for this assignment. That Invoice No. 1021/16 dated 08.04.2016 the service tax is shown as 14.5% and Invoice No. 1038/16 dated 27.06.2016 for ₹ 3,60,000/- the service tax is shown as 15% and Invoice No. 1104/16 dated 01.12.2016 the service tax is shown as 14%, 0.5% Swach Bharat Cess, 0.5% Krishi Kalyan Cess which clearly shows that defective and illegal invoices have been raised with wrong service tax rates. o. Therefore the respondent sought to dismiss the C.P.(IB).No. 35/BB/2018. 4. Heard Shri Abhishek Dutta along with Sayli Petiwale, Shri Vaibav M., Learned Counsels for the Petitioner and Shri Uday Shankar R.M. along with Ms. Asmita Deshpande, Learned Counsels for the Responden .....

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..... 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 clauses in the agreement 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. Therefore, we are of considered opinion that there is a dispute with regard to debt in question, and thus it is not a fit case to admit. 8. Hence, by exercising powers conferred on the Adjudicating Authority u .....

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