TMI Blog2019 (8) TMI 1601X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner herein has lodged police complaints alleging the amount due from the Respondent. There exists a credible dispute with regards to the payment of the alleged Operational Debt - the present case is not a fit case to admit - Application admitted - moratorium declared. - C.P. (IB) No. 65/BB/2019 - - - Dated:- 28-8-2019 - Rajeswara Rao Vittanala, Member (J) and Dr. Ashok Kumar Mishra, Member (T) For the Appellant : Vishruth C., Anita Patil, Uma Arya, B.J Ragini, Advocates For the Respondents : S. Vivekananda and Theerthesh.B.S., Advocates, VGB Associates ORDER Dr. Ashok Kumar Mishra, Member (T) 1. C.P.(IB) No.65/BB/2019 is filed by Mr. Arounane. P, U/s 9 of the IBC, 2016 R/w Rule 6 of the Insolvency and Bankruptcy (Application to Adjudication Authority) Rules, 2016, by inter alia, seeking to initiate Corporate Insolvency Resolution Process (CIRP) against M/s. One Bill Software India Private Limited on the ground that the Corporate Debtor committed a default for total outstanding amount of ₹ 33,79,425/- (Rupees Thirty Three Lakhs Seventy Nine Thousand Four Hundred and Twenty five Only) as on 30.04.2015. 2. Brief facts of the case, as mentione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le dated 30.09.2014, 31.12.2014, 30.06.2015 and 31.12.2015 in equal instalments. Those employees who had opted for Option A' like Operational Creditor got their payments on assured dates except for the Operational Creditor himself. g) It is stated that in the month of February 2015, the Operational Creditor was asked to leave the company with two months notice i.e., 30.04.2015 and on 16.03.2015 the Operational Creditor was assured by Mr. Jayakumar Chelladurai in writing that he would get payment of four instalments as per cash reward letter wherein the first and second instalment would be paid along with full and final settlement and the third and fourth instalments would be paid by January 2016 i.e., the time when the buyer (i.e Enabil) would release final payment to the Corporate Debtor. h) After relieving the Operational Creditor, he received his full and final settlement from Corporate Debtor but encashment of 1st and 2nd instalments were withheld. When the Operational Creditor approached the Corporate Debtor regarding the same in the month of January 2016, he was told that the buyer (i.e. Enabil) had not paid full amount and hence he would be paid only after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Operational Debt under Section 5(21) of Insolvency and Bankruptcy Code, 2016. Further the Petitioner has approached this Tribunal after 4 years which itself is sufficient to reject the application on the grounds of limitation. c) The Respondent states that it is pertinent to note that amount claimed in demand notice i.e., Form 3 and in Form 5 reflect different figures. The amount claimed in Form 3 is 59,34,600/-whereas, the amount claimed in Form 5 is 33,79,452/- (Rupees Thirty Three Lakh seventy nine thousand four hundred and fifty two only). d) It is submitted that One Bill Software India Private Limited which was formerly known as Tarshan Software Service India Private Limited was founded in the year 2009. The Company presently has 4 directors and 40 employees. One Bill software is mainly into software development and consulting. The Company had two divisions i.e., consulting division and product division. The company was initially formed by Mr. Jayakumar Chelladurai, who is the present Managing Director and Mrs. Barathi Balakrishnan. Subsequently Mr. Arounane Parusuraman, the Petitioner herein was appointed by the Board as Managing Director and was given substan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ches in the month September 2014, December 2014, June 2015 and December 2015 and the balance cash reward at the time when employees leave the company. The employees were eligible to claim this balance reward only if the employee stays with the company at least till July 2016. The Plan B gave an option for upfront payment of cash reward if the employee stays with the company at least till July 2016. i) It is stated that the Petitioner opted for Plan A and accordingly he was eligible for the amount in four tranches which become due in the month of September 2014, December 2014, June 2015 and December 2015 and the balance after July 2016. The Petitioner left the company on 13.04.2015 after causing severe losses which amounts to crores of rupees. As per clause 5 of the cash reward program the Company forfeited the amount and a Resolution too was passed to this effect. It is further submitted that the Petitioner had responsibility of managing and ensuring the growth in the business in India. The Petitioner did not discharge his responsibility and bring in any business, which impacted the performance of the company. On account of poor performance the Company did not achieve the targ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tead of approaching civil court for redressal of his grievance has approached this Hon'ble Tribunal under Insolvency and Bankruptcy Code, as a threatening tactics. n) It is stated that the Petitioner in turn is liable to pay the company for making the company run into doldrums. 4. Heard the learned Counsel for the Petitioner and the learned Counsel for Respondent. We have carefully perused pleadings along with material papers filed in support of the case and the extant provisions of Code and Law. 5. 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 reasons as per the Code. The Hon'ble Supreme Court in the case of Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited (2018) 1 SCC 353 , has inter alia, held that IBC, 2016 is not intended to be substitute to a recovery forum. In another latest judgment rendered in Transmission Corporation of A.P.Ltd. Vs. Equipment Conductors and Cables Ltd., (CA No.9597 of 2018) dated 23rd October, 2018, (2018) 147 CLA 112 (SC) The Hon'ble Supreme Court of India has, inter alia, held that exis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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