TaxTMI 
TaxTMI 
2017 (6) TMI 655
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....rt) Rules, 1959. All such petitions after transfer to the respective NCLT Benches enjoying territorial jurisdiction, were required to be treated as the one file under Section 7, 8, 9 or 10 of the Code as per the claim of the petitioner and were to be dealt with in accordance with part II of the Insolvency and Bankruptcy Code, 2016. As per the proviso to Rule 5 the petitioner was obliged to submit complete information in that regard necessary for admission of the petition to the Tribunal within sixty (60) days from the date of the issuance of notification failing which the petition was to abate. The information was to include details of proposed insolvency professional. It is appropriate to mention that the period of sixty (60) days was later increased to six (6) months vide notification dated 28.02.2017. 2. In accordance with the Transfer Rules and the subsequent notification dated 28.02.2017 the petitioner filed application on 10.04.2017 on the proforma prescribed for such application praying that the petition may be considered as one under Section 9 of the Code. 3. Now let us have facts of the case which have led to the initiation of proceedings by the petitioner, Shri Prem....
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....f Rs. 4,25,000/- per annum as is evident from the appointment letter (Annexure P/4). Within a period of four months Bycell India realized the worth of the petitioner and upgraded him from the position of a consultant to that of a Senior Advisor on the yearly emoluments of Rs. 37.08 lacs plus reimbursement of expenses, mobile phone, conveyance and travel expenses actually incurred. A copy of the letter dated 1.4.2008 upgrading him to the post of Senior Advisor has been placed on record (Annexure P/5). The petitioner continued to work with Bycell India as such till 4.10.2009 thereafter the petitioner was given the highest position in the Bycell India as one of its Director on the same emoluments. A copy of the letter to that effect was issued on 05.10.2009 which has been placed on record (Annexure P/6). The necessary formalities of sending information to the Registrar of Companies and other statutory authorities were duly carried out by Bycell India and the petitioner assumed the position as a Director in Bycell India. 6. On account of continuous efforts made by the petitioner, Bycell India succeeded to secure Letter of Intent from the Government of India to operate Mobile service....
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....ad as under:- Dues of Mr. P.S. Narula cheque component cash component Total Salary 2010-11 0 180000 Salary 2011-12 2638947 180000 2012-13 upto 31.08.2012 1470000 75000 leave salary @1 month/year = 4 months 1176000 60000 Total 5284947 495000 5779947 Sundry reimbursement due 50000 Total 5829947 salary for 2012-13 from Sep. 2012, @ 1 lakh/pm 700000 700000 Salary for 2013-14 upto January 2014 1000000 1000000 retention fee February + March 2014@50000/- pm 100000 retention fee 2014-15 600000 retention fee April 2015 to December 2015 450000 payment received =$33000= Rs. 2042661 8679947 -2042661 Balance due 6637286 10. The petitioner eventually served a statutory legal notice on Bycell India on 07.05.2016 by speed post, courier service and electronic communication (email). The statutory legal notices were returned back with the endorsement "left". Even the email bounced back with the comme....
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....f the bank accounts of the Respondent Company; (iii) the names and residential addresses of the Directors along with their PAN No.; (iv) The particulars of assets held in the name of all the directors of the respondent company along with the dates of acquisition as well as the nature of their right, title and interest therein; to be disclosed in a sealed cover for the time being; (v) the address of the Registered Office and the Corporate or branch offices, if any, of the Respondent Company; (vi) the location of the statutory records and books of account of the company; and (vii) the list of immovable assets, land and building etc. of the respondent along with full particulars thereof sufficient to accurately identify & locate the said assets." A copy of the company petition filed before the Hon'ble Delhi High Court and a copy of the instant petition filed before this Tribunal have been sent by speed post to the respondent on 22.02.2017. The petition has, however, not named any insolvency professional. 13. In the reply/objection filed by the Operational debtor the stand taken is that the Hon'ble High Court of Delhi transferr....
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....its accounts. The claim of the petitioner has been controverted by pointing out that the offer letter for Directorship does not mention any remuneration offered to him for working on the post of Director. It has been claimed that the petition is grossly defective and incomplete and is thus liable to be rejected under provisions of Section 9(5)(ii) of the Code. It has further been claimed that the substantial portion of the debt claimed by the petitioner is time barred under the provisions of the Limitation Act, 1963. The claim has been made in respect of the amounts due from 2011-2016. 15. There is a dispute as the claim of the petitioner has already been disputed by Bycell India. The respondent has settled all the outstanding dues with the petitioner by making payment of Rs. USD 33,000 on 03.02.2014 and no further amount is due and payable to the petitioner. There is a fatal defect as no notice has been given by the corporate debtor relating to a dispute of unpaid operational debt as per the requirement of Section 9(3)(b) of the Code. 16. Learned counsel for the petitioner has raised two principal argument before us. Firstly, it has been submitted that the provisions of Sect....
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....aced reliance on the proviso to Rule 5 of the Transfer Rules' and argued that on the date of filing the compliance affidavit in March, 2017 the petition had abated as the period of sixty (60) days have come to an end in February 2017 itself. Once the petition had abated the notification issued subsequently extending the period to six months would not infuse a new life in an abated petition. According to the learned counsel the provisions of Section 8 of the Code are mandatory and requires the filing of a copy of invoice demanding payment or demand notice sent by the petitioner and delivered to the respondent. Even affidavit has not been filed which was required to the effect that there is no notice given by the Corporate debtor relating to a dispute of the unpaid operational debt. 21. Having heard learned counsel for the parties and after perusing the record with their able assistance the first question which needs determination is whether the provisions of Section 433 of the Companies Act, 1956 continue to apply or the provisions of Insolvency and Bankruptcy Code, 2016 would come applicable. Learned counsel for the petitioner has vehemently argued for continued application ....
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....y be wound up; (d) if the company has made a default in filing with the Registrar its financial statements or annual returns for immediately preceding five consecutive financial years; or (e) if the Tribunal is of the opinion that it is just and equitable that the company should be wound up.". 12. For section 272, the following section shall be substituted, namely:- 272. Petition for winding up. - (1) Subject to the provisions of this section, a petition to the Tribunal for the winding up of a company shall be presented by- (a) the company; (b) any contributory or contributories; (c) all or any of the persons specified in clauses (a) and (b); (d) the Registrar; (e) any person authorised by the Central Government in that behalf; or (f) in a case falling under clause (b) of section 271, by the Central Government or a State Government. (2) A contributory shall be entitled to present a petition for the winding up of a company, notwithstanding that he may be the holder of fully paid-up shares, or that the company may have no assets at all or may have no surplus assets left for distribution among the shareholders after the satisfaction of its liabiliti....
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....be dealt with in accordance with part II of the Code. 23. It was in pursuance of the amendment made in Sections 271 and 272 of the Companies Act, 2013 and Rule 5 of the Transfer Rules that this petition has been transferred by Hon'ble High Court of Delhi to the NCLT which is adjudicating authority. On behalf of the petitioner, firm reliance has been placed on para 3 of the judgment rendered in the case of R. Radhakrishnan (supra) by Hon'ble the Supreme Court. In para 3 their Lordships have placed reliance on earlier judgment of the Constitution Bench of the Supreme Court rendered in Shyam Sunder v. Ram Kumar [2001] 8 SCC 24 and on behalf of the petitioner reliance has been placed on the proposition culled out in that judgment which is evident from the following paras:- "28. From the aforesaid decisions the legal position that emerges is that when a repeal of an enactment is followed by a fresh legislation, such legislation does not affect the substantive rights of the parties on the date of suit or adjudication of suit unless such a legislation is retrospective and a court of appeal cannot take into consideration a new law brought into existence after the judgment app....
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....rm of Insolvency and Bankruptcy which may eventually results into liquidation of the respondent company. Thus the result is similar to the one which would be achieved in case of winding up. It needs to be further added that right becomes a vested right only when its acquired and is enjoyed by a litigant. Merely by filing a petition no right is acquired leave aside the enjoyment of such a right. Therefore, we are unable to persuade ourselves to accept first contention raised by the petitioner. 25. On the basis of principles enunciated by the Constitution Bench in the case of Shyam Sunder (supra), K.S. Paripooran v. State of Kerala [1994] 5 SCC 593, R. Rajagopal Reddy v. Padmini Chandrasekharan AIR 1996 SC 238 and the judgment rendered in R. Radhakrishnan (supra) it cannot be concluded that the omission x x x x x x x of Section 433 (e) of the Companies Act and its substitution by the provisions of Insolvency and Bankruptcy Code, 2016 has taken away any substantive or vested right of the petitioner. By virtue of the provisions of the Insolvency and Bankruptcy Code, 2016 the right has been reregulated and the procedure for its adjudication has undergone some changes. Even the forum ....
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....nal debtor copy of an invoice demanding payment of the amount involved in the default to the corporate debtor in such form and manner as may be prescribed." 5. Rule 5 of I & B Rules also mandates an Operational Creditor to deliver the Corporate Debtor a demand notice in Form 3 or a copy of an invoice attached with a notice in Form 4, as quoted below: 5. Demand notice by operational creditor.- (1) An operational creditor shall deliver to the corporate debtor, the following documents, namely.- (a) a demand notice in Form 3; or (b) a copy of an invoice attached with a notice in Form 4. (2) The demand notice or the copy of the invoice demanding payment referred to in sub-section (2) of section 8 of the Code, may be delivered to the corporate debtor, (a) at the registered office by hand, registered post or speed post with acknowledgement due; or (b) by electronic mail service to a whole time director or designated partner or key managerial personnel, if any, of the corporate debtor. (3) A copy of demand notice or invoice demanding payment served under this rule by an operational creditor shall also be filed with an information utility, if any. 6. The applicati....