TaxTMI 
TaxTMI 
2019 (8) TMI 218
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....rms of impugned order dated 20th December, 2018 passed by the Adjudicating Authority (National Company Law Tribunal), Mumbai Bench on the ground that a dispute was existing between the parties regarding the debt and the application was not maintainable. The impugned order is assailed primarily on the ground that there was a default in discharging the debt qua the services rendered by the Appellant to the Respondent - 'M/s KEC International Ltd.' (Corporate Debtor) having its registered office at Worli, Mumbai, independent of the foreign decree passed in favour of the Appellant and the suit filed by the Appellant (Operational Creditor) for realization of decreed amount as per foreign judgment (Labour Court of Kinshasa at DR Congo) dated 11th....
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.... return to India. The Appellant filed suit no. 526 of 2017 under Section 13 of the Code of Civil Procedure 1908 before the Bombay High Court. The Appellant claimed unpaid Operational Debt calculated at INR 1,59,09,181/- from Corporate Debtor as according to the Appellant he continued to be on the roll of Corporate Debtor. Appellant issued demand notice under Section 8(1) of I&B Code which was served upon the Corporate Debtor on 12th June, 2018. Since the demand notice did not invoke any response from the Corporate Debtor within the prescribed period, but a delayed reply was received by the Appellant wherein the Corporate Debtor raised the plea of dispute in regard to the Operational Debt in the form of suit commenced by the Appellant in Bom....
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....stituted an existing dispute between the parties on the date of filing of application under Section 9 of I&B Code before the Adjudicating Authority. 4. Learned counsel for the Appellant submitted that in the instant case the Operational Debt being a claim for services rendered during employment and non-payment resulting in accumulation of arrears of salary constituted default. It is further submitted that the Corporate Debtor has admitted contract of employment and no record has been produced to show that the services of Appellant have been terminated in terms of the contract of employment. He also submits that the Respondent has not produced any record to show that the salary was paid to the Appellant from the date it fell due. It is subm....
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....onclusive and executable. 6. Heard learned counsel for the parties and perused the record. The only issue requiring determination is whether in absence of adjudication of the foreign decree passed by a court in a non-reciprocating, territory, which is relied upon by the Appellant, the Appellant was legally justified in seeking initiation of Corporate Insolvency Resolution Process under Section 9 of the I&B Code against the Corporate Debtor. It is not in controversy that the claim upon which default of Operational Debt is founded arises out of a contract of employment. The fact that the Appellant was engaged as Assistant Manager - Coordination by the Corporate Debtor for an Overseas Project in terms of Appointment Letter dated 9th November,....
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....r seeking winding up of a company. Such decree cannot be held conclusive as it has not been given on merits of the case. Reference may profitably be made to law laid down by Hon'ble High Court of Delhi in "Rajkumar Gupta Vs. Barnes Investments Ltd. & Ors.", reported in 2007 (99) DRJ 629 and Hon'ble High Court of Bombay in "Marine Geotechnics LLC Vs. Costal Marine Construction and Engineering Ltd.", reported in (2014) 183 CompCas 438 (BOM). It cannot be disputed that the concept of winding up under the Companies Act, 2013 tantamount to liquidation under the I&B Code and viewed in perspective of legislative change it has to be accepted that the liquidation being culmination of the process under I&B Code as a sequel to failure of Insolvency Re....
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....nd having regard for the same, the Appellant has chosen to file suit before Hon'ble High Court of Bombay, which is still subjudice. Unless the decretal amount is adjudicated upon by the Hon'ble High Court of Bombay as a legally payable claim, the same would not constitute a "Debt" in the hands of Appellant - Operational Creditor and unless the debt is crystallized and payable in law, the issue of default would not be attracted. Admittedly, Appellant is pursuing the litigation before the Bombay High Court in regard to the foreign decree and claim payable thereunder. He cannot be permitted to circumvent the appropriate legal remedy, already pursued, by invoking provisions of Section 9 of I&B Code, thereby defeating the fundamental provisions ....