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TMI Blog2021 (12) TMI 1317X X X X Extracts X X X X X X X X Extracts X X X X ..... tor w.e.f. 20.11.2015 and remained an employee with them from 20.11.2015 till 28.02.2017 giving his services as Chief Financial Officer (CFO) and Chief Planning Officer (CPO) at the Senior Management Level and he was not agreed upon certain clauses in the Appointment Letter and hence the same was not signed by him and had requested the Company to make necessary modifications in the said terms. Also, the Operational creditor resigned from the said post vide his resignation letter dated 01.12.2016, by giving the required 3 months notice period i.e. his last working day would have been 28.02.2017 but during the period, when the operational creditor was serving the notice period, he was suddenly told by the Corporate Debtor, that his last working day would be 31.12.2016 and he would be paid all his dues (including the balance unpaid notice period of 2 months, variable pay amount, arrears of his increment and the pending reimbursement amount) in the due course. The Operational creditor was not given any opportunity to continue till completion of committed notice period because of which, he was deprived of his two months full salary. The operational Creditor sent various mails and remind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were once again informed to the Applicant by the Respondent by way of reply dated 27.12.2019 and 23.01.2020 to the Demand Notice dated 12.12.2019 of the Applicant. iii. It is further submitted that the claim raised in the present Application has been denied time and again by the Respondent and the Applicant is well aware of the said position. iv. It is also submitted that the Applicant has solely premised his claim on the basis of an email dated 27.04.2020 of Mr. Mahesh, who is neither here nor there. It is stated that an email was issued without the requisite approval of the Competent Authority of the Respondent and if read in the manner as proposed by the Applicant, an assurance of such nature is in the teeth of the terms of the Employment Agreement. v. Prior to the present petition, the operational creditor filed its claims covered under the present petition before the Labour Commissioner Court, Delhi and simultaneously instituted the process of filing civil commercial suit before the Hon'ble Patiala House District Court wherein pre-litigation mediation as the preliminary stage of a commercial suit was triggered. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ful dues does not lead to dispute and also does not make the present application out of limitation. iv. Allegation of "below average performance" of the Corporate Debtor falls short to justify its own recognition of Applicant's contribution during the tenure of service for reasons that the Applicant, was promoted to the position of Chief Planning Officer (CPO) directly reporting to the MD & CEO elevating his position from Chief Financial Officer (CFO). And, the Applicant was also strongly recommended by the MD of Corporate Debtor to the prospective employer as per his email dated 26.03.2017. v. Corporate Debtor never ever communicated/notified to the Applicant of such alleged performance, termination and variable pay issues for which Corporate Debtor has a pre-defined procedure for putting below average employees on Performance Improvement Plan, which was not the case with the Applicant. vi. The applicant had received the confirmation from HR through email dated 21.01.2016 stating that the applicant is eligible for increment and variable pay as he had joined before 31.12.2015, which is clear acceptance of the outstandi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find that the date of default mentioned in the application is 30.12.2016 whereas the present application is filed on 13.03.2020. In view of Article 137, the applicant is required to file the application within 3 years when the right to apply accrues. 10. At this juncture, we would also like to mention the date of default referred at page 11 and accordingly, the date of default, is 30.12.2016. On the basis of that, it can be said that applicant admits that the date of default is 30.12.2016 and since as per the termination letter dated 30.11.2016, the last working date of the applicant was 30.12.2016, therefore, the date of default is 30.12.2016. In this case the date from which debt fell due was 30.12.2016, therefore, the right to apply accrues on 30.12.2016 and the present application was filed on 13.03.2020 which is beyond 3 years of date of default. Hence, the application is barred by limitation. 11. At this juncture, we would also like to refer to the arguments advanced on behalf of the applicant, who in course of arguments referred to the correspondence made between the parties through e-mail and in course of arguments, he also referred the e-mails, which are at page 36, 39, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the inception of the Code, Article 137 of the Limitation Act gets attracted. "The right to sue", therefore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing of the application, the application would be barred under Article 137 of the Limitation Act, save and except in those cases where, in the facts of the case, Section 5 of the Limitation Act may be applied to condone the delay in filing such application." At this juncture, we would also quote Article 137 of the Limitation Act- Description of suit Period of limitation Time from which period begins to run 137. Any other application for which no period of limitation is provided elsewhere in this Division. Three years When the right to apply accrues Now in light of the decision and provision, this Adjudicating Authority would like to consider the case in hand as whether the present application by the Operational Creditor is within the time prescribed under Article 137 of Limitation Act and whether the Operational Creditor has filed the application after three years. 13. On the basis of the aforesaid discussion, we are of the considered view the present applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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