TMI Blog2020 (4) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. The amount claimed by the Operational Creditor is more than ₹ 1 lakh which is the minimum threshold limit fixed under IBC, 2016 therefore,under such circumstances we have no option but to reject the contention of the Corporate Debtor that the application is not maintainable and it is liable to be rejected rather we are of the considered view that the Operational Creditor has succeeded to establish this fact that he was duly appointed by the Corporate Debtor and joined new assignment and a transfer was made by Corporate Debtor in terms of offer letter and the amount claimed in the petition is not paid to the Operational Creditor, which he is entitled to get in lieu of services rendered by him. Petition admitted - moratorium declared. - Company Petition (IB) No. - 1639/ND/2019 - - - Dated:- 21-1-2020 - Abni Ranjan Kumar Sinha, Judicial Member And Sumita Purkayastha, Technical Member Mani Bhushan Sinha, Adv. for the Applicant. Sagar Bansal and Simran Jyot Singh, Advs. for the Respondent. ORDER Abni Ranjan Kumar Sinha, The present petition is filed under section 9 of Insolvency Bankruptcy Code, 2016 ( Code ) read with rule 6 of the Inso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ahi Director with Corporate debtor called the Operational Creditor himself and told him that his salary would be cleared once he report at Raigarh (CG) and he would also get an increment of ₹ 7,000/- from the agreed salary and in addition to this, he would be getting other facilities like expenses of the lodging, boarding and commutation. 8. Accordingly the Operational Creditor finding the offer good took charge at Raigarh (CG) on 19-9-2014 and started working, he used to report to the assigned officer and the Head office. 9. The Operational Creditor continuously used to send the letter either directly or through the Dean of the College, where the project was running. Even dean of the College once intervened and has called a joint meeting with the Director of the ICMER and the Operational Creditor in which it was agreed by the Corporate Debtor that he would pay immediately ₹ 10,32,000/- but the same is also not honoured by the Corporate debtor. 10. Demand notice dated 27-3-2019 was sent to the Corporate debtor through Speed Post. 11. The total outstanding as overdue salary amount including expenses is ₹ 28,42,230.22/- plus interest @15% P.A. as on 31-5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PWD Department addressed to ICMER stating petitioner is not competent to render services related to Architectural and Engineering work and some else need to be appointed in his place otherwise ICMRT will not be paid for the work. h. The Corporate Debtor did not reply to section 8 Notice sent almost 3 months before the petition was filed as Petitioner has already threatened Corporate debtor and ICMER multiple times in past. i. The petitioner has admitted the existence of dispute by non-filing of Affidavit under section 9(3)(b) which shall need to be filed in order to confirm that there is no notice given by the Corporate Debtor relating to a dispute of the unpaid operational debt. j. The petitioner in Annexure A8 A9 on page 65 of petition himself admitted that he was working for ICMER and for not Corporate Debtor. k. The Petitioner was paid in full for services he rendered to corporate debtor for probationary period of 19-7-2014 to 19-9-2014 and as well as for two months notice period. l. The outstanding amount if any, for services rendered to ICMER from January 2015 onwards is pending then that is not covered under the definition of Operational debt and ICMER is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordingly, the Operational Creditor has joined. He further submitted that in the offer letter, nowhere it is mentioned that there is any probation period rather it is specifically mentioned that the service of the Operational Creditor can be transferred to any Other project in India, if required. He further submitted that, as per the offer letter, an amount of ₹ 43,000/- was paid on 6-2-2016. He further submitted that after 2 or 3 months, the place of the Operational Creditor was relocated to new ongoing project and Corporate Debtor at the remote area of Raigarh (Chhattisgarh) at medical college but earlier the Operational Creditor was not inclined to join there but subsequently on the assurance given by the Director of the Corporate Debtor, he joined the new location at Raigarh on 19-9-2014. He further submitted that thereafter several demands were made by the Operational Creditor for the dues for which the Operational Creditor was entitled to get in lieu of the salary but the same has not been given. He further submitted that in response to the meeting dated 09-12-2018, the Operational Creditor submitted an application to the director of ICMER regarding the payment of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erational Creditor does not come under the definition of operational debt. 17. Now, in the light of submissions made on behalf of the parties, we have gone through the averments made in the petition, reply, rejoinder written submissions. Since, the Corporate Debtor has challenged the petition on the ground of limitation, therefore, we would like to consider the limitation at first. At this juncture, we would like to refer the averments made in part IV of the application. Of course, in part 4, para 1 at page 40, the Operational Creditor mentioned that the debt falls due on and from 14-7-2014 and is continuing as on date but in response to the meeting dated 09-12-2018, the Operational Creditor submitted an application for the release of an amount which was recommended by the Dean of the Govt. Medical College, Raigarh on 22-12-2018, which would be evident from page 88 of the application. 18. At this juncture., we would also like to refer the Annexure A-16 which is at page 100 of the petition and saving account of the Operational Creditor which shows that the last payment of ₹ 40,000/- was made on 6-2-2016. Therefore, in our view, the limitation runs from 6-2-2016 and not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel appearing for the Corporate Debtor is that it is running by the trust not by the Corporate Debtor. Since there is no document to show that the services of the Operational Creditor has been terminated in the light of offer letter dated 10-7-2014, therefore, we are unable to accept the contention of the Corporate Debtor that the Operational Creditor joined in the Govt. Medical College after termination of his services from the place, where he joined on the basis of offer letter issued by the Corporate Debtor and which is under the control of the Corporate Debtor. 20. At this juncture, we would also like to refer this fact that in course of hearing learned counsel appearing for the Corporate Debtor submitted that since the Operational Creditor was on probation, therefore, his service was terminated without any notice. If I shall consider this submission of the Corporate Debtor along with Offer Letter dated 10-7-2014 then we find, nowhere in the offer letter, it is mentioned that the Operational Creditor is on probation, of course, it is mentioned that the services are liable to be terminated at any time in case his performance has reported not to be satisfactory or superior by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the expiry of the period of ten days from the date of delivery of the notice or invoice demanding payment under sub-section (1) of section 8, if the operational creditor does not receive payment from the corporate debtor or notice of the dispute under sub-section (2) of section 8, the operational creditor may file an application before the Adjudicating Authority for initiating a corporate insolvency resolution process. (2) The application under sub-section (1) shall be filed in such form and manner and accompanied with such fee as maybe prescribed. (3) The operational creditor shall, along with the application furnish- (a) a copy of the invoice demanding payment or demand notice delivered by the operational creditor to the corporate debtor; (b) an affidavit to the effect that there is no notice given by the corporate debtor relating to a dispute of the unpaid operational debt; (c) a copy of the certificate from the financial institutions maintaining accounts of the operational creditor confirming that there is no payment of an unpaid operational debt l[by the corporate debtor, if available;] 2(d) a copy of any record with information utility confirming that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny of the clause of section 9 sub-section 5 (11) then the Adjudicating Authority in view of the decision of Innoventive Industries Ltd. v. ICICI Bank Ltd. [2017] 84 taxmann.com 320/143 SCL 625 has no option but to admit the application under section 9 (5) (11) of the Code. In the light of such provision, when we shall consider the case in hand then we find that admittedly no dispute was raised under section 8, sub-section 2 of the Code and the amount claimed by the Operational Creditor has not been paid by the Corporate Debtor and we have also noticed that the application is complete and there is no disciplinary proceeding pending against the proposed IRP who has also given his consent. We further find that the amount claimed by the Operational Creditor is more than ₹ 1 lakh which is the minimum threshold limit fixed under IBC, 2016 therefore,under such circumstances we have no option but to reject the contention of the Corporate Debtor that the application is not maintainable and it is liable to be rejected rather we are of the considered view that the Operational Creditor has succeeded to establish this fact that he was duly appointed by the Corporate Debtor and joined new ..... X X X X Extracts X X X X X X X X Extracts X X X X
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