TaxTMI 
TaxTMI 
2019 (5) TMI 1575
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.... as 'I&B Code') seeking initiation of Corporate Insolvency Resolution Process has been admitted, Interim Resolution Professional appointed and moratorium slapped on the Corporate Debtor. The impugned order is assailed on the grounds of non-conformity with the provisions of Section 8 and 9 of I&B Code and failure on the part of Respondent No. 1 (Operational Creditor) to substantiate her claim. 2. The factual matrix, in so far as the same is relevant for deciding this appeal, may briefly be noticed. Corporate Debtor - 'M/s Sixth Dimension Project Solutions Ltd.' - a company incorporated on 13th October, 1998, is stated to be a leading provider of project management consultancy services. Respondent No. 1 was appointed by the Corporate Debtor as Assistant General Manager (Legal) on annual salary of Rs. 10 Lakhs with other benefits in terms of offer letter dated 10th January, 2014. Respondent No. 1 claimed to have worked till 31st December, 2016. She tendered her resignation in terms of her letter dated 23rd December, 2016 with a request letter for release of her outstanding dues of Rs. 24,07,880/-. Since the Corporate Debtor failed to clear her outstanding dues, Respondent No. 1 ser....
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....alary, as claimed in your letter dated 23.12.2016 will be settled in due course of time, in any case, within one year." 3. Learned counsel for Appellant submits that pursuant to the offer letter dated 10th January, 2014 in terms whereof Respondent No. 2 offered Respondent No. 1 the position of Assistant General Manager (Legal), Respondent No. 1 was required to fulfil specific conditions set out in the offer letter but since Respondent No. 1 did not comply with such conditions, no formal employment letter was issued in her favour. However, as an alternative to full time employment, Respondent No. 1 was engaged as a Retainer/ Legal Consultant and paid on an adhoc basis from time to time for the matters in which she was engaged. Subsequently, in July, 2015, several deficiencies were noticed in performance of Respondent No. 1. Same were communicated to her during various meetings and discussions. It is submitted that in a meeting held in September, 2015 concerns of Respondent No. 1 over unpaid arrears were addressed and the Corporate Debtor paid an amount of Rs. 3 Lakhs to Respondent No. 1 in terms of the agreement arrived at between them. It is further submitted that since Responde....
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....fense raised is a mere eyewash designed to defeat the Corporate Insolvency Resolution Process and the spurious defense raised by the Corporate Debtor has rightly been frowned upon and rejected by the Adjudicating Authority. 5. Heard learned counsel for the parties and fathomed through the depths of the factual matrix as emerging from record. 6. Initiation of Corporate Insolvency Resolution Process at the instance of an Operational Creditor is provided for under the provision engrafted in Section 9 of the I&B Code, whereunder an 'Operational Creditor' may file an application before the Adjudicating Authority for initiating a Corporate Insolvency Resolution Process after complying with the statutory requirements of Section 8. Dwelling on the scope of this provision in "Innoventive Industries Ltd. v. ICICI Bank, (2018) 1 SCC 407", the Hon'ble Apex Court observed as under: "29. The scheme of Section 7 stands in contrast with the scheme under Section 8 where an operational creditor is, on the occurrence of a default, to first deliver a demand notice of the unpaid debt to the operational debtor in the manner provided in Section 8(1) of the Code. Under Section 8(2), the cor....
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....ment required to be issued by the Corporate - Debtor is on record, it is the admitted position that Respondent No. 1 joined the organization viz. Corporate Debtor and rendered meritorious services in her capacity as AGM (Legal). This factual position emerges from letter dated 27th December, 2016, written by Shri R. Subramaniam, Director of Corporate Debtor marked 'Exhibit J' at page No. 97 of the paper book, which eloquently speaks of the qualitative performance of Respondent No. 1. Appellant has not placed on record any documentary proof of cancellation of the offer letter with regard to appointment of Respondent No. 1 as AGM (Legal) and her engagement as Retainer. No proof has also been educed to substantiate the contention that she was paid on an adhoc basis from time to time for the matters in which she was engaged and that such engagement was terminated w.e.f. November, 2015. In absence of proof of recall of letter of offer of employment to Respondent No. 1, and subsequent engagement as Retainer, the contention raised by the Appellant on this score deserves to be outrightly dismissed as a pure concoction, more so as the documents on record in general and the Letter dated 27....