TaxTMI 
TaxTMI 
TaxTMI 
2017 (2) TMI 1339
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....ferred to as Company) is a Company incorporated under the provisions of Companies Act, 1956 with an Authorised Capital of Rs. 1,20,00,00,00,000/- divided into 1,20,00,00,00,000 shares of Rs. l/- each and paid up capital of Rs. 2,74,93,26,655/- It is a listed Company on the Bombay Stock Exchange with 30% public shareholding. (b) The Petitioner has worked for various group companies of the Company from January, 2003 till January, 2014 at various positions/designations, and the last being "Chief Executive Officer" of the Company posted at corporate office in Gurgaon. He had resigned from the Company, vide his letter dated 23.12.2013, after properly serving notice to the Company. So he was relieved from service in the month of January, 2014. He claimed that he was entitled to emoluments consists of pending salary, HRA, local allowance, attire allowance, special allowance, child education allowance etc. and also entitled for Leave Encashment, gratuity etc., at the time of relieving his duties. (c) Since the Company did not pay dues due to him, the petitioner issued demand notice on 2nd January, 2017, as per Form-3 under section 8(1) of IBP, 2016 R/w Rule 5 of Insolvency and Bankrupt....
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....p; (d) The Petitioner has sent a demand notice/invoice dated 02.01.2017 under Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, to the Chairman of Company by requesting it to repay the amount due within 10 days from the receipt of this letter, failing which he informed that he would initiate a Corporate Insolvency Resolution process in respect of the Company. (e) In pursuance to the above notice, M/s Chandhiok & Associates, Advocates on behalf of Company sent a reply dated 11.01.2017 by email to Mr. Deva Vrat Anand, Advocate for the Petitioner with a copy to the Petitioner by inter-alia stating that the contents in the Demand Notice was nothing but a cohesive means to harass and agonise the Company, and pressurize it to give into his unjust demands by threatening insolvency of Company. It is also stated that the demand notice was issued under Section 7 of the IBC, which shall be given by a financial creditor, whereas the petitioner is not a financial creditor and thus Demand Notice was also incorrect and erroneous and not tenable. And this response was given as a notice under Section 8(2) of IBC, 2016. ....
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....able to pay Rs. 3,81,943/- to the Company. The petitioner, being a Senior Management employee and CEO of the Company, has enjoyed wide discretionary powers and those powers were misused by using Company policies. Except the Petitioner herein, no other creditor of the Company has made a demand on the Company, and approached the Tribunal. It is further stated that the petitioner was not interested for honest settlement of alleged claims, and in fact, the Petitioner was asked by the Company to come forward, and make full and honest declaration of actual leaves availed by the petitioner, and to settle the alleged claims. (e) The Tribunal cannot be misused to settle and determine the cases of disputed claims. Once a dispute is raised in respect of operational debt, the Tribunal does not any have jurisdiction to settle such disputes, which necessary should be settled by Civil Court through a process of adjudication by leading evidence on the disputed questions of fact. (f) The IBC does not have a retrospective effect, and its provisions will apply to cases, where non-payment of an operational debt arises after its promulgation. The Code came into operation on 28th May, 2016. The alle....
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....as an employee to execute and manage the functioning of the Company. He was transferred to various inter-company transfers due to reorganisation of business of Company commencing from January, 23,2003 till his last day of service i.e., January, 31, 2014. (b) After pursuing the issue in question for more than 17 months, after the date of relieving from the Company, he received full and final settlement (FFS) by an e-mail dated 14.07.2015 through electronically generated document with the caption as "SAP GENERATED DOCUMENT, NEEDS NO SIGNATURE". He stated that the total amount of Rs. 122,055,57.30/- subject to statutory deductions/taxes as on 31.01.2014, and it was not paid till date. The Petitioner relied upon SAP generated document, and it cannot be disputed at this stage, and the same will be against the doctrine of indoor management. (c) The Company failed to raise valid dispute before the issue of demand notice, but replied on 11.01.2017 via e-mail stating that the Applicant (Petitioner) was not a corporate debtor and has raised frivolous issues with regard to leave encashment, travel bills for previous years, etc. He also disputed various contentions of the Company with rega....
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....t Petition is liable to be rejected on the ground that the Company has already issued a notice of dispute vide letter dated 11.01.2017 to the Petitioner under Section 8(2) of the Code within a prescribed time frame by explaining as to why the Petitioner was not entitled for payment of any dues. The subject FFS was a disputed one, and it was not authenticated and unauthorised to issue. (b) The claim of the Petitioner for encashment of 199.5 unavailed leaves amounting to INR 91,43.749,34 is baseless and untenable as the Petitioner himself being a CEO was under a fiduciary duty to declare his leaves and then claim un-availed leaves. However, during the entire tenure of petitioner for about 9 years, not a single self- declaration of the leave was made by the Petitioner. If the leaves were declared, the HR department would have to input the availed leaves into the SAP system from time to time. SAP system was adopted in the Company till the date of his resignation. SAP statement reflects all the earned leaves (15 days per year) and all sick leaves (12 leaves per year) which an employee is entitled for encashment. However, for the reasons best known to the Petitioner, he is claiming and....
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....689, 691, 692,693, 694,695,700 etc were pending before the Hon'ble High court of Delhi. The facts and issue raised in that case has no bearing in the present case. (f) The Learned Counsel for the Respondents, therefore, submits that petition is liable to be dismissed. 8. I have carefully considered all the above contentions of both the parties. 9.The Insolvency and Bankruptcy Code, 2016 was enacted by the Parliament in the 67th year of Republic of India and the main object of the Act is as follows: "An Act to consolidate and amend the law relating to reorganisation and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner for maximisation of value of assets of such persons, to promote entrepreneurship, availability of credit and balance the interests of all the stakeholders including alternation in the order of priority of payment of Government dues and to establish an Insolvency Bankruptcy Board of India, and for matters connected therewith or incidental thereto". 10. The Company Petition has been filed under section 9(3) (b) of Insolvency Bankruptcy Code, 2016 read with Rule 6 of Insolvency Bankruptcy (Application to Adjudicat....
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....petitioner failed to show his bona fides to approach this Tribunal except technically contending that he has not received the notice of dispute in question from the Company before receipt of demand notice in question. 12. It is not in dispute that the resignation of the Petitioner was accepted on 23.12.2013. A sum of Rs. 5 lakhs was credited by the Company to the Applicant on 15.01.2015. The petitioner failed to explain suitably that FFS in question was an authenticated document. However, the Company suitably explained vide their responses dated 11.01.2017 and 23.01.17 proving that there was a clear dispute with regard to the claim in question and there are no dues from the Company to the Petitioner. The Petitioner kept quiet for a long period from 23.12.2013 i.e., from the date of resignation till January, 2017 and it indicates that the Petitioner did not make any claim with respect to the alleged due before making the present issue. By creating FFS as explained above, started the present issue. Moreover, the Company asked the petitioner to come forward and make full and honest declarations of actual leaves availed by the petitioner and to settle his alleged claims. Without avail....