TaxTMI 
TaxTMI 
2017 (11) TMI 99
X X X X Extracts X X X X
X X X X Extracts X X X X
....wan, 28 Barakhamba Road, New Delhi-110001. 3. The case of the 'Operational Creditor' is that it has entered into a Consultancy Agreement with 'Corporate Debtor' on 01.07.2015 for a period of three years which is valid upto 30.06.2018. It is for providing management consultancy services to 'Corporate Debtor'. As per the terms of the aforesaid consultancy agreement, 'Operational Creditor' has provided the services to the 'Corporate Debtor'. A copy of the consultancy agreement has been placed on record (Annexure-1). Pursuant to clause 5 of the aforesaid consultancy agreement, 'Corporate Debtor' has agreed to pay the 'Operational Creditor' remuneration against, the consultancy services which reads as under:- "3.1 The compensation of Rs. 54,00,000/- per annum to be broken down into a monthly payment of Rs. 4,50,000/- per month. 3.2 Performance related pay limited to 2% (two percent) of the profit after tax at the end of the financial year." In addition to above 'Operational Creditor' is also entitled to get the benefits under the Group Insurance Scheme of the Company. As per the terms set out in the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed as per the admission of the Corporate Debtor. A copy of the demand notice and postal receipt have also been placed on record (Annexure-3). 8. The 'Operational Creditor' has proposed the name of Mr. Deepak Arora, 23 Ka 4, Jyoti Nagar, Near Vidhan Sabha, Jaipur- 302005. His registration number is IBBI/IPA-IP/00032/2016- 17/1049. A written communication dated 27.04.2017 in terms of Rule 9(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 has also been placed on record (Annexure-6). There are necessary disclosures made by Mr. Deepak Arora as per the requirement of the IBBI Regulations. Accordingly, he satisfies the requirement of Section 7(3)(b) of the Code. 9. The 'Corporate Debtor' after service appeared before this Tribunal and filed the short affidavit in reply to the petition alongwith a copy of the reply (Annexure-I) dated 29.04.2017 to the demand notice sent by the Operational Creditor. The Corporate Debtor has averred that the communication of demand notice (Annexure-3) sent by the Operational Creditor cannot be said to be a valid demand notice under Section 8 of the Code, 2016, Further the status of the Operational....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nment, any State Government or any local authority. Operational Creditor is a person to whom operational debt is owed and includes any person to whom such debt has been assigned or transferred. The definition of Operational Creditor is not exhaustive but illustrative and is capable of covering those heads which are not specifically mentioned in the definition. The definition of operational debt postulates that it is a claim in respect of the provision of 'goods' or 'services' including employment etc. It is not denied by the Corporate Debtor that the petitioner has rendered management consultancy services to it in pursuance of a consultancy agreement dated 01.07.2015. Therefore, it has to be assumed that the Operational Creditor has provided consultancy services to the Corporate Debtor in accordance with the terms of agreement. There is default in making the payment. It cannot thus be concluded that the petitioner is not an Operational Creditor or that the default is not in respect of an operational debt. 12. The argument with regard to demand notice issued under Section 8 of the Code has also not impressed us as the same is without substance. Demand notice....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... paid performance related pay limited to 2% (two percent) of the profit after tax at the end of financial year. (b) ......... (c) ......... (d) ......... (e) The Company will make the payment on the Consultant submitting a monthly invoice duly approved by Managing Director. 9. Non-compete & Non-solicitation Obligation The Consultant shall not directly or indirectly in any geographic area or market where the Company or any of the sister concerns or subsidiaries are conducting any business until one year from the date of Termination of this agreement * either on his/her own or on behalf of any person, firm, or corporation in any way, directly or indirectly deal with, solicit, divert, or take away any existing customer of the Company * induce any employee of the Company or any of the related concerns/associates to terminate his/her engagement/employment with the Company. 11. Notice Period & Termination Either party shall have the right to terminate this agreement at any time before its expiry by giving three months' notice in writing. In the event of termination, the Consultant shall be entit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....here is default committed within the meaning of Section 3(12) read with Section 4 and Section 9 (1) of the Code, 2016. The notice under Section 8 of the Code has been duly served. Even the bank statement (Annexure-4 and 5) have been filed to satisfy the requirement of Section 9(3)(c) of the Code. 15. The Operational Creditor has also proposed the name of Interim Insolvency Professional namely Mr. Deepak Arora, 23 Ka 4, Jyoti Nagar, Near Vidhan Sabha, Jaipur-302005, [email protected], who has made declaration in accordance with the provisions of Rule 9 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. 16. As a sequel to the above discussion, this petition is admitted and Mr. Deepak Arora is appointed as an Interim Resolution Professional. His registration number is IBBI/IPA- IP/00032/2016-17/1049. 17. In pursuance of section 13 (2) of Code, we direct that -t Interim Insolvency Resolution Professional shall immediately make public announcement with regard to admission of this application under Section 7 of the Code. We also declare moratorium in terms of Section 14 of the Code. A necessary consequence of imposition of the moratorium....