TaxTMI 
TaxTMI 
2020 (4) TMI 183
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.... Creditor approached by the Corporate debtor and was offered a job for a Project under work with Corporate Debtor at Raigarh. 4. The Corporate Debtor is in the business of the Project Management Consultancy and used to take Contract and consultancy of govt., and Non-Govt. projects mainly construction of building. 5. The Operational Creditor was selected by the Corporate Debtor and was asked to come to New Delhi Head Office of the Corporate Debtor to complete the joining formalities and to understand the work and his assignments. He signed two letters viz. "Offer Letter" dated 10-7-2014 and "Reporting Instruction" Letter dated 14-7-2014. 6. As per averments made in the Application, the Corporate Debtor told him that the copy of the "Offer Letter" will be sent to the Operational Creditor by courier while he can take the "Reporting Letter" as he has to give this to the Chief Engineer at Raigarh as a part of reporting formalities and authorization by the Corporate Debtor. But the Corporate Debtor has not handed over the copy of Offer Letter with an assurance that the same would be sent to him with proper endorsement and signature of the Directors but till now neither the same ....
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....lacked the necessary Professional skills/competency which he earlier represented to have causing immense inconvenience for the Corporate Debtor. b. During the time of interview, the petitioner assured the Corporate Debtor that he will do any work anywhere in the country and asked him to give another opportunity. Upon request of the petitioner, the Corporate Debtor asked him to join another organization namely International Consociation for Medical Education & Research as admitted by Petitioner himself at page 30 (Part -IV, Para 12 ) of the petitioner filed. c. ICMER is a charitable trust of public nature started in March 1997 and formally registered on 2-4-2000 under Indian Trust Act, 1882. Petitioner joined ICMER and was no more employee of Corporate Debtor form 19-9-2011 onwards. d. The petitioner continued to render services to ICMER since January 2015 and never addressed any letter/E-mail to the Corporate Debtor because he himself knew he is no more an employee of Corporate Debtor as admitted by him. e. The Petitioner has not disclose the E-mail dated 21-4-2015 sent by the Corporate Debtor to the petitioner wherein the petitioner was decided ....
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....acking in the professional skills the applicant worked with the Corporate Debtor for more than four year. c. The Corporate Debtor has not submitted any proof of the fact that the applicant was on probation period since 19-7-2014. d. Mr. A.S. Rahi never informed operational creditor that he is terminated from the job instead he was asked to join the project of ICMER at Raigarh, which is said to be the sister concern of the Corporate Debtor, as per the previous employment terms and conditions with increment as pleaded in the present application. e. The Corporate Debtor has neither issued any such termination letter to the applicant nor issued any new appointment letter or e-mails pertaining to the same allegation. f. As per the annexure R-l of the reply (Pages 27 & 28) it is clear that the Director of the Corporate Debtor and ICMER are same both being sister concern. g. There were no pre-existing dispute between the Operational Creditor and Corporate Debtor. h. Vide meeting dated 09-12-2018, the Corporate Debtor through ICMER agreed the outstanding salary of operational creditor for the 2014 and 2015 at the rate of 43,000/- per mo....
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....iew of section 8 of the Code, the Corporate Debtor has not raised any dispute within 10 days from receiving the demand notice therefore, any specific objection regarding the non-payment of the amount to be accepted. He further submitted that even in reply, it is not disputed by the Corporate Debtor that he is not the employee of the Corporate Debtor. In course of arguments, he further submitted that Ld. Counsel for the Corporate Debtor raised this point that since his services were transferred to the ICMER, therefore, he is no more employee of the Corporate Debtor but this has not be corroborated by the Corporate Debtor because the Operational Creditor joined in that department, which is the sister concern of the Corporate Debtor, on the basis of the transfer made by Director of the Corporate Debtor, so the Operational Creditor is still an employee of the Corporate Debtor. 16. On the other hand, Ld. Counsel for the Corporate Debtor in course of his arguments submitted that the present application is barred by limitation because last amount was paid off on 14-8-2015 making present application barred by limitation as it has been filed on 7-6-2019, which is after the expiry of 3 ye....
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....edgement of debt. We further find that the issue of limitation was not raised by the respondent at the time of filing of the reply rather in course of his arguments, the respondent raised this therefore, we are unable to accept the contention of the learned counsel for the Corporate Debtor the present application is barred by the limitation. 19. Now coming to the second point, since the Corporate Debtor raised this point that the service of the petitioner has been terminated on telephone and thereafter the Operational Creditor joined the new assignment and so after 14-8-2015, the Operational Creditor is no more employee of the Corporate Debtor. In the light of the submissions, when we have gone through the averments made in petition, reply, rejoinder then we find that it is admitted by the Corporate Debtor that no termination order was issued by the Corporate Debtor. We further find that even the Corporate Debtor fails to convince us that the service was terminated on telephone rather on the basis of the documents that is the recommendation made by the Dean of the Medical College on 22-12-2018, it can be said that the Operational Creditor is still working in that Medical College....
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....re, we would like to refer section 8 of the IBC and the same is quoted below:- "8. Insolvency resolution by operational creditor- (1) An operational creditor may, on the occurrence of a default, deliver a demand notice of unpaid operational debtor copy of an invoice demanding payment of the amount involved in the default to the corporate debtor in such form and manner as maybe prescribed. (2) The corporate debtor shall, within a period of ten days of the receipt of the demand notice or copy of the invoice mentioned in sub-section (1) bring to the notice of the operational creditor - (a) existence of a dispute, 1[if any, or] record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute; (b) the 2[payment] of unpaid operational debt- (i) by sending an attested copy of the record of electronic transfer of the unpaid amount from the bank account of the corporate debtor; or (ii) by sending an attested copy of record that the operational creditor has encashed a cheque issued by the corporate debtor. Explanation. - For the purposes of this ....
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....g a corporate insolvency resolution process under this section, may propose a resolution professional to act as an interim resolution professional (5) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), by an order- (i) admit the application and communicate such decision to the operational creditor and the corporate debtor if - (a) the application made under sub-section (2) is complete; (b) there is no 3[payment] of the unpaid operational debt; (c) the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor; (d) no notice of dispute has been received by the operational creditor or there is no record of dispute in the information utility; and (e) there is no disciplinary proceeding pending against any resolution professional proposed under sub-section (4), if any. (ii) reject the application and communicate such decision to the operational creditor and the corporate debtor, if - (a) the application made under sub-section (2) is incomplete; (b) there has been 1 [payment] of the unpaid operati....
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....vices rendered by him. 23. Considering the aforesaid circumstances this Adjudicating Authority is inclined to admit this petition and initiate CIRP of the Corporate Debtor. Accordingly, this petition is admitted. A moratorium in terms of section 14 of the Insolvency & Bankruptcy Code, 2016 shall come into effect forthwith staying:- "(a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debt or any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. Further: (2) The s....