TMI Blog2020 (3) TMI 1262X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant prior to the date of issuance of the demand notice. We further find since on 6th June 2019. show cause notice under Section 6 of the Payment of Wages (amended) Act. 2017 was sent in which the correspondence made through the various email. Further, vide email dated 6th June. 2019, the Corporate Debtor has also informed the Operational Creditor that due to non-payment of salary, the staffs deputed by the Operational Creditor refused to join their service on 6th June, 2019 and they have gathered in front of the hospital near gate No. 1. Whether this dispute has been raised within the period prescribed under Section 8(2) of the IBC, 2016 or not? - HELD THAT:- Before receiving the demand notice, the Corporate Debtor has raised the disputes and the email exchanged between the two, which are prior to the issuance of the demand notice shows that there was a dispute regarding the amount claimed by the Operational Creditor and it has also come that the proper staff were not being deputed/posted by the Operational Creditor as per the agreement - there are no option but to hold that the Corporate Debtor has raised the dispute regarding the service and also regarding the payment ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Institutional Area Unit. Therefore, the Operational Creditor started providing services to the Corporate Debtor at Qutab unit via Agreement dated 12.10.2016. 5. In pursuant of the Order dated 12th October. 2016. the Operational Creditor after providing service to the Corporate Debtor raised the invoices on the various dates, which are mentioned at page 13 of the paper book. 6. After raising the invoices, the Operational Creditor has received ₹ 18,00,959/- against the invoices referred at page 12 which relates to Phase-1, Dwarka, New Delhi and ₹ 4,86,197/- against the invoices raised at page 13 of the paper book in respect of service provided at Qutab Unit and claimed that total of ₹ 1,35,54,011/- is outstanding due and since the said amount is not paid, therefore, there is a default in payment of the aforesaid amount. Further, the debt become due after 30 days from the date of issuance of invoice. 7. Invoices for Dwarka Unit at page 12 are quoted below: - Invoice No. Date Invoice Value Payment Due as on 10.06.2019 118/18-19 01.10.2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 63.19.475.00 57,26,612.00 9. In support of its claims, the Operational Creditor has enclosed agreement dated 1st September, 2016 for Dwarka Unit and agreement dated 8th October, 2016 for Qutab Unit, the statement of bank account of the Operational Creditor as well as the invoice, ledger account of the Corporate Debtor is maintained by the Operational Creditor and the TDS deducted by the Corporate Debtor, on the other hand, Corporate Debtor appeared and filed the reply. 10. The facts mentioned in the reply in short is that the applicant has failed to disclose that there is pre-existing pending dispute between the parties with regard to alleged sum payable to the applicant by the respondent's Company. Further, there is a series of correspondence exchanged between the representatives of both the parties pertaining to the applicant invoices and non-compliance with Labour Laws. 11. Further as per the terms of agreement, the service provider/applicant was responsible for complying with the requirements of various statutory provisions as applicable in respect of its employees/staff deputed at the respondent's hospital. 12. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice, the applicants in an attempt to make his liability served a demand notice dated 17th May, 2019 on the Respondent for the alleged amount and in reply to said demand notice vide email dated 24th May. 2019, the respondent informed the applicant that it shall be deducting 60% from the amount raised in the invoice on account of applicant's repeated defaults in furnishing the requisite documents and in complying with the respondent's notice, the respondent also paid ₹ 18.00.959/- towards the salary of the employees paid directly to them and ₹ 4,86.197/-against the invoices raised by the applicant and accordingly, applicant deducted such amount paid by the respondent from the alleged amount in a salary claimed by it and amended the instant application to revised the purported claim and on this ground alone, the claim of applicant is not liable to be accepted. 18. In support of the averments, the applicant also annexed the emails and the invoices against which the payments are made. 19. In pursuant to the reply filed by the Corporate Debtor, the applicant has also filed the rejoinder and the ground taken in the rejoinder is almost same as taken by the appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, so labour issue cannot be brought by the Corporate Debtor to negate the payment of Operational Creditor and in this regard, he placed reliance upon the decision of Supreme Court in Mobilux Innovations Private Ltd vs. Kirusa Software Private Ltd (2018) 1 Supreme Court Cases 353. 27. On the other hand. Learned Counsel for the respondent, in course of his arguments submitted that prior to the issuance of the demand notice, the dispute was raised by the Corporate Debtor regarding the amount claimed by the Operational Creditor through various email exchanged, therefore, the present application is not maintainable. 28. He further submitted that the respondent through emails dated 24th may 2019 (annexure 5 page 38). 29th June, 2019, 27th April. 2019, 01st April 2019, 06th March, 2018, 24th January 2019. and 18th December 2018 (annexure 6 colly., page 40 and 630/2019 at page 33) directed the applicant to furnish all such documents showing compliance of various labour law. 29. He further submitted then that he communicated the deduction on account of repeated default on the part of applicant to raise legitimate invoices but these facts were suppressed by the applicant. Learned C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 019 stated that there are existing disputes with regard to the outstanding payment and the same has been intimated by the management, therefore, we would like to consider this aspect at first, where dispute raised by the Corporate Debtor in reply to demand notice issued under Section (81) is a dispute in terms of Section 8(2)(a) or not? 34. At this juncture, we would like to refer page 27 of the reply i.e. the email sent by one Mr. Sunil Gupta, representative of the Respondent's Company to Mr. Livleen Anand, the representative of the Operational Creditor by which, he informed regarding the shortage of manpower. Apart from the aforesaid email dated 21st November 2018, there are other correspondence made through the email on 2nd November 2018, 1st November 2018, 31s1 October 2018, 21st October 2018 and on the various dates regarding the shortage of the staffs. 35. We. further find that at page 40 of the reply vide email dated 27th April, 2019. one Mr. Anand Kumar, executive of the Human Resources informed the Operational Creditor regarding the deficiency in the bill submitted by the Operational Creditor in respect of the bills of January 2019, February 2019 and March 2019. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal near gate No. 1. 40. At this juncture, we would like to refer the argument advanced by the Learned Counsel appeared on behalf of the Operational Creditor, who in course of his argument submitted that no dispute is raised. At this juncture, we would also like to refer the affidavit filed by the Operational Creditor in compliance with Section 9(3)(b) of the IBC, 2016 which is at page 22 of the application. We have gone through the affidavit filed by the Operational Creditor and we find, in para-2. although, the applicant mentioned this fact that he has received email dated 8th June. 2019, in relation to the demand notice dated 17th May, 2019 that he has not mentioned in the affidavit whether any dispute has been raised or not, whereas, from the perusal of the email dated 8th June, 2019 which is at page 33 of the application, we find that the respondent has mentioned in that email that there are pre-existing disputes with regard to the outstanding payment and same has been intimated to the Operational Creditor from time to time by the management of Corporate Debtor. 41. If we shall place reliance, this part of the contention of the email referred at page 33 of the applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proper staff were not being deputed/posted by the Operational Creditor as per the agreement. Therefore, we have no option but to hold that the Corporate Debtor has raised the dispute regarding the service and also regarding the payment made by the Operational Creditor to their employees/staff. 47. At this juncture, we would also like to refer the decision upon which both the parties have place reliance. We have gone through the decisions upon which both the parties have placed reliance i.e. the decision in the matter of (1996) 10 SCC 599 in the case of Hindustan Steel works Construction Limited Vs. Commissioner of Labour and Others. Since both the parties placed reliance on this decision, therefore, on the basis of this decision, this Adjudicating Authority finds that there is no dispute that principal employer i.e. the respondents are liable to pay the amount and the principal employer i.e. respondent is entitled to recover that amount paid to the workmen of the contractor. Here, in the case in hand, it is admitted by the Operational Creditor that some amount was directly paid to the employees by the respondent. Therefore, in our opinion, on the basis of the decision upon whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t been paid? And (iii) Whether there is existence of a dispute between the parties or the record of the pendency of a suit or arbitration proceeding filed before the receipt of the demand notice of the unpaid operational debt in relation to such dispute? If any one of the aforesaid conditions is lacking, the application would have to be rejected. Apart from the above, the adjudicating authority must follow the mandate of Section 9, as outlined above, and in particular the mandate of Section 9(5) of the Act, and admit or reject the application, as the case may be, depending upon the factors mentioned in Section 9(5) of the Act. 49. Since there is existence of dispute, therefore, in our opinion, in order to admit an application under Section 9. this Adjudicating Authority is required to consider the ground mentioned at Section 9(5)(i) of the IBC, 2016, and if these conditions are not fulfilled then this Adjudicating Authority have no option but to reject the application under Section 9(5)(ii). 50. Here, in the case in hand, we find that notice of dispute has been received by the Operational Creditor and on the basis of documents enclosed with the application and rep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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