2018 (10) TMI 1765

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....ivate limited company incorporated on July 13, 2010. The Petitioner is the Indian branch of a leading international executive search firm. M/s. Nitesh Estates Limited, the Respondent is a public limited company incorporated on February 20, 2004, engaged in the real estate business. The Petitioner and Respondent had been dealing with each other since 2016. b. The Respondent had engaged the Petitioner to provide executive search services for the position of Vice President-Retail & Commercial, Chief Operating Officer, Vice President-Head of Sales and Head Project Finance, and the Parties entered into various fee proposals in this regard. Accordingly, the Petitioner shortlisted various candidates, conducted interviews, scheduled meetings with candidates and provided the Respondent with progress reports. As per the fee proposals, the invoices were to be raised on a milestone basis and accordingly the Petitioner raised invoices. The Respondent never had any complaint regarding the quality of services provided by the Petitioner. The Respondent has failed to make payment towards invoice Nos.1022/16 dated April 14, 2016, 1037/16 and 1038/16 dated June 27, 2016, 1056/16 dated August....

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....owever, the Petitioner provided the services only for the executive search for Vice President-Commercial. So suitable candidates for appointment for the post of Chief Operating Officer and Head Project-Finance were not provided by the Petitioner and their posts are still vacant. c. The Respondent appointed a candidate Mr. Rajit Gupta on the recommendation of the Petitioner for the position of Vice President-Sales on 05.12.2016. The services of Mr. Gupta were terminated, on being found that he has filed forged documents for the purpose of appointment. As per the terms of engagement, in the case of resignation or termination of the candidate within 6 months, the Petitioner was required to replace a candidate for the position and only then fees will become payable to the Petitioner as per the guarantee clause of recruitment contract. However, the Petitioner failed to provide substitute appointment so far. Therefore, no payment is payable for this position. d. The respondent has made the following payments: i. Rs. 5,40,000/- vide Cheque No. 58123 dated 12.04.2016 drawn on Deutsche Bank. ii. Rs. 5,00,000/- vide Cheque No. 000006 dated 13.01.2017 drawn....

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..... As per Clause 8 of the Agreement in question, the total fees for recruitment be fixed fee and the amounts At the time of signing 20% of fixed fee Upon presentation of shortlisted candidates 30% of fixed fee When candidate signs offer letter 50% of fixed fee i. The amounts payable as per the agreements entered as follows: S. No. Positions given to Pedersen 20% of fixed fee while signing agreement 30% of fixed fee on first shortlist Balance to be paid on releasing the offer to candidate   1. VP-Retail Commercial 2,74,800 4,14,000 6,90,000 2000478281 2. VP-Sales 2,76,000 4,14,000 6,90,000 2000578281 3. Chief Operating Officer (COO) 3,43,500 5,17,500 NA 2000178281 4. Head Project Financing 3,22,000 NA NA 2000278281     12,16,300 13,45,500 13,80,000   j. The Petitioner raised invoices which has not been shown in the Petition and Respondent has made payment of Rs. 17,18,000/- in the following manner to Petitioner: Invoice amount Particulars Amount Paid 2,74,800 20% of VP Retail-Commercial 2,74,800 2,7....

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....Rs. 2,74,800/- and also adjusted an amount of Rs. 14,43,320/- paid as advance for other 3 positions on previous invoices raised by petitioner against the amount payable for this assignment. That Invoice No. 1021/16 dated 08.04.2016 the service tax is shown as 14.5% and Invoice No. 1038/16 dated 27.06.2016 for Rs. 3,60,000/- the service tax is shown as 15% and Invoice No. 1104/16 dated 01.12.2016 the service tax is shown as 14%, 0.5% Swach Bharat Cess, 0.5% Krishi Kalyan Cess which clearly shows that defective and illegal invoices have been raised with wrong service tax rates. o. Therefore the respondent sought to dismiss the C.P.(IB).No. 35/BB/2018. 4. Heard Shri Abhishek Dutta along with Sayli Petiwale, Shri Vaibav M., Learned Counsels for the Petitioner and Shri Uday Shankar R.M. along with Ms. Asmita Deshpande, Learned Counsels for the Respondents. 5. The Learned Counsels for the Petitioner, while pointing out various averments made in the Company Petition and the documents filed in support of the petition, has also filed written arguments dated 18.09.2018, by inter alia, contending as follows: a. The details of invoices raised, the corresponding amount p....