AI Drafter 
TaxTMI 
TaxTMI 
2017 (2) TMI 1339
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.... (a) M/s Lanco Infratech Limited (Which is referred 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....
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.... Gratuity Payment 1500000.00 Tax Food Bal. Payment 1300.00 Total Additional Payments (D) 1501300.00 Total Payable (E) = (A+B+C+D) 12222969.34 Net Amount payable to Employee = (E-F) 8140606.34 (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 hara....
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.... he holds an account. Moreover, it is not the case of the petitioner that Axis Bank is only financial institution, in which he was maintaining his accounts. The Company had already paid INR Rs. 5,00,000 to the Petitioner in January, 2015, and this fact was also not bought to the notice of the Tribunal. (d) It is not the case of the Petitioner that the Company is insolvent to pay the alleged claim in question, on the contrary that the petitioner himself was liable 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 ....
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....allow the petition as prayed for. 5. I have heard Shri A. Vekatesh, the Learned Counsel for the Petitioner, and Shri C.V. Narasimham the Learned Counsel for the Respondent, and also perused all the pleadings along with material papers filed by the respective parties. 6. The Learned Counsel for the petitioner reiterated various averments made in the Company petition and subsequently filed written gist of arguments dated 13.02.2017 and his primary submissions are as under : (a) The petitioner was appointed 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....
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....stion should be raised by the corporate debtor before the receipt of the demand notice, and it cannot be raised subsequent to the issue of demand notice. So there is no existence of dispute as contended by the Company. (f) The Company petition is maintainable as per law and facts and thus prayed that the Tribunal may be pleased to admit the case and initiate Insolvency process as prayed for. 7. Sh. C.V. Narsimham, the Learned Counsel for the Respondent, while reiterating various averments made in counter, has further submitted as under: (a) That the present 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 ....
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.... e-mail (FFS) to any department of management of the Company. So the basis of FFS in question was fraudulently taken by the Petitioner, who was admittedly working in higher executive position in the Respondent Company. (e) The learned counsel relied upon judgement of Hon'ble Principal Bench, NCLT in the case of Nikhil Mehta & Sons (HUF) v. AMR Infrastructures Ltd. However, the case was instituted, under Section 7 of IBC, 2016, and the issues considered in the case were; who is 'Financial Creditor and what is financial debt. And several winding up petitions and Company Petitions No. 477 of 2014, 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 reorgani....
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....ebt, which is due and payable In the instant case, as explained supra, due in question is totally in dispute as the petitioner claim was not only rejected by the Company but also filed a statement showing that the petitioner himself was due to the Company. Moreover, the petitioner having worked for more than 9 years in the Company as senior Executive i.e. from 19.11.2005 to 23.12.2013 and keeping quiet for a long time, make a demand basing on un-authentic and un-authorised FFS in question, is not at all tenable to invoke the provisions of IBC, which is meant for protection of bonafide stakeholders of a Company as per the objects of IBC as extracted above. The 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 v....