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TMI Blog2023 (1) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... garayya Chowdhary, IRP JUDGMENT ( Virtual Mode ) NARESH SALECHA, MEMBER (TECHNICAL) The present `Appeal' is filed against the 'impugned order' dated 27.04.2022, passed in C.P. (IB) No. 215/9/HDB/2021 by the 'Adjudicating Authority' (National Company Law Tribunal, Hyderabad Bench), whereby, the 'Adjudicating Authority' admitted application filed under Section 9 of the Insolvency & Bankruptcy Code, 2016 (in short 'I &B Code, 2016). Brief Facts Of The Case & Submissions by the 'Appellant' & 1st Respondent :- 2. Mr. Sadhanala Venkata Rao is 1st Respondent who was appointed as Additional Director- Executive Category and Chief Executive Officer in the 2nd Respondent Company ('Corporate Debtor') vide two board resolutions both dated 05.01.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter resigned from the post of 'Chief Executive Officer'. 5. The Learned Counsel for the Appellant stated that the salary component had two parts i.e. 50% as fixed salary and 50% variable salary. The variable salary payment was subject to meeting 'Key Performance Indicators' ('KPI') which were not achieved by the 1st Respondent. 6. The Learned Counsel for the Appellant denied claim of 1st Respondent in the Reply to the 1st Respondent on 10.06.2021. 7. The Learned Counsel for the Appellant stated that Rs. 89,00,000/- as fixed salary was paid from 04.01.2018 to 08.01.2021. However, the 1st Respondent has claimed for further salary of Rs. 94,25,000/- as variable salary. The Learned Counsel for the Appellant stated that this variable salary w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usiness plans and stated these projections were made in ordinary course of business and were not relevant for his salary entitlement. The Learned Counsel for the 1st Respondent further stated that he resigned due to harassment by the 2nd Respondent and for non payment of his dues. 12. The Learned Counsel for the 1st Respondent mentioned that during his term the Chief Executive Officer there was healthy 'Earning Before Interest, Taxes, Depreciation and Amortization' ("EBITDA") of the 2nd Respondent i.e. 'Corporate Debtor' was at 27%-31% during the 1st Respondent tenure. The Learned Counsel for the 1st Respondent further mentioned that in the Board Resolution for his appointment nowhere the condition of his pay linking to his performance was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the 'Balance Sheet' as on 31.03.2018 where the remuneration of the 1st Respondent 'Chief Executive Officer' has been stated as Rs. 60,00,000/- with the clarification that 'has approved by the Shareholders in EGM'. 17. From the 'Demand Notice' issued under Section 8 of the I & Code, 2016 dated 11.05.2021, this 'Appellate Tribunal' observe the break up provided of the outstanding of Rs. 1,01,15,000/- till 08.01.2021 as under :- PARTICULARS OF OPERATIONAL DEBT January 4th, 2018 - January 3rd 2019: INR 30,00,000/- (Rupees Thirty Lakhs Only) January 4th, 2019 - January 3rd 2020: INR 30,00,000/- (Rupees Thirty Lakhs Only) January 4th, 2020 - January 8th 2021: INR 34,90,000/- Terminal Benefits : INR 6,25,000/- 18. From the same 'D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... `Form MR1', filed with `RoC', where also Rs.60,00,000/-, has been indicated as `minimum remuneration', payable to the Rs. 1st Respondent', in any Financial Year, during the tenure even when the Rs. 2nd Respondent / Company', does not have any profit. 21. This 'Appellate Tribunal' also observed that proper demand notice under Section 8 of the I & B Code, 2016 was issued dated 11.05.2021 with all facts and figures including amount due and not paid which was not replied admittedly by the 2nd Respondent within 10 days. The 'Reply' indeed was sent much later on 10.06.2021. Issue regarding pre-existing disputes was not established. 22. Based on all above facts, documents filed with RoC, Board Resolution of the Appointment of the 1st Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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