TaxTMI 
TaxTMI 
2020 (10) TMI 326
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....rivate Limited, is a company incorporated on 24.11.1999, under the provisions of Companies Act, 1956 with CIN No. U72900KA1999PTC051999, having its registered office at Sai Deep Sri Nidhi No. 2, NAL Wind Tunnel Road, Murgesh Palya, Bangalore, Karnataka-560017. 3. The Respondent, the Corporate Debtor namely M/s. BSES Rajdhani Power Limited is a company incorporated on 04.07.2001, under the provisions of Companies Act, 1956 with CIN No. U40109DL2001PLC111527, having its registered office at BSES Bhawan, Nehru Place, New Delhi- 110019. 4. The Authorised Share Capital of the respondent company is Rs. 12,00,00,00,000/- and Paid Up Share Capital of the company is Rs. 10,40,00,00,000/-as per Master Data of the company. 5. It is the case of the applicant that, the Corporate Debtor approached the Operational Creditor, to engage its services on a non-exclusive basis in order to avail services, skills, and expertise of the resources of the Operational Creditor for the purposes of the operations of the Corporate Debtor and to that effect an agreement dated 04.07.2017 (hereinafter referred to as the 'Principal Agreement'), was executed, effective from 01.07.2017 to 30.06.2018, whereb....
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....ditor further states that, as is ascertainable from the above presented clauses, the Operational Creditor was to raise invoices for a particular month in two parts; once, during the course of the particular month for 60% of the total invoice amount, and secondly, during the course of the following month for the balance amount. The Corporate Debtor was obliged to make payment of the first invoice for 60% of the total invoice amount for the particular month during the course of the said particular month; and the Corporate Debtor was obliged to make payment of the balance amount during the course of the ensuing month. 8. In view of the above, the bills and invoices dated 31.03.2018, 27.04.2018, 29.06.2018, 31.07.2018 and 17.09.2018 were raised upon the Corporate Debtor by the Operational Creditor. That vide email dated 24.09.2018, the Corporate Debtor was reminded by the Operational Creditor of the due payments and was requested to disburse an amount of Rs. 3,54,08,330.78/- (Rupees Three Crore Fifty Four Lakhs Eight Thousand Three Hundred Thirty Three and Seventy Eight Paise), as was due on the said date. 9. The Operational Creditor further states that, vide email dated 25.10.2018, ....
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.... as per MCA master data of the company. 14. Despite the demand notice sent under Section 8 of the Code, the Respondent has failed to pay the amount demanded and has neither raised any notice of dispute nor replied to the said notice, hence this application, seeking to unfold the process of CIRP. 15. The applicant has stated that total debt due and payable is Rs. 2,68,06,255/- (Rupees Two Crores Sixty Eight Lakhs Six Thousand Two Hundred Fifty Five), along with pendente lite and future interest @ 18% per annum. 16. The application under section 9 of the IBC, 2016 was filed by the applicant to initiate CIRP. The Respondent caused appearance and seek time for filing of reply vide order dated 22.01.2019, the Respondent was given time to file reply. The reply was filed and has been considered for adjudication in the present proceedings. 17. The Respondent in its reply states that, On 09.05.2019, i.e. during the pendency of the present Petition, since Adecco has cleared the pending obligations towards most of the employees BRPL, in a bonafide manner, after verifying the accounts made a payment of Rs. 2,40,86,267/- in favor of Adecco. As such, at present dispute now only pertains to a....
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....resolving the difference of TDS by providing details of 2012-13 and amount of TDS related to 12-13 deposited in 13-14 to close the DN raised and reconcile" BRPL responded to the said email on 05.09.2018 and reminded Adecco of its commitment to settle all balance EPS/EPF cases latest by 20.09.2018. 24. In order to protect the interests of the Contractual Employees, BRPL has no other alternative but to withhold payment of Invoices in order to ensure that Adecco performs its contractual obligations in respect of the Contractual Employees. It was made clear that till the grievances of the Contractual Employees are not addressed, BRPL shall not make any further payments. 25. As is evident from the exchange of emails referred above, BRPL had raised a dispute with respect to the amounts claimed in the Petition prior to the issuance of Demand Notice dated 11.12.2019 by Adecco. The dispute raised satisfies the test that has been laid down in the judgment of the Hon'ble Supreme Court in Mobilox Innovations Private Ltd vs. Kirusa Software Private Ltd (2018) 1 SCC 353. Accordingly, the present Petition is liable to be dismissed as there is a pre-existing dispute between the parties in th....
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.... dispute raised, as mentioned above and this claim being barred by limitation, this claim cannot form the basis for initiation of CIRP against BRPL. B. Bonus - Alleged claim pertains to a double payment made by Adecco unilaterally in addition to the Bonus/ex-gratia already paid for 2017-18 The same was done without informing or consulting BRPL. It is submitted that: (a) Adecco being the employer for the contractual employees, is responsible to identify the employees and calculate and pay the Bonus. During the normal course, Adecco prepared a calculation sheet identifying the amount of Bonus to be paid to employees eligible for Bonus; and Ex-Gratia amount to be paid to the employees who are not eligible for Bonus. (b) Admittedly, Adecco carried out the said exercise for the FY 2017-2018 and raised an invoice bearing No. DLBON100161819 (not part of the present Petition) for the same on BRPL. The payments were released after sharing the required information with BRPL and after taking confirmation to release the amounts. (c) On 29.10.2018, BRPL made a payment of Rs. 1,40,09,857.98/- on account of the Bonus paid by Adecco. The payments for the Bonus for FY 2017-2018 and the Invo....
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....expected to calculate the correct amount of bonus to be paid for each employee and adjudicate the difference in the payments. 29. In pursuance to the reply of the Corporate Debtor, the Operational Creditor has filed its rejoinder, the same has been taken on record. The Operational Creditor in its Rejoinder states that, the so called pre-existing dispute as alleged by the Respondent pertains to determination of the Right to Payment of the Applicant in respect of the services as provided by the Applicant to the Respondent, it is essential to present understanding of the arrangement as entered into between the Respondent and the Applicant. 30. It is stated that the Applicant is an exempt entity under the Employee's Provident Fund and Miscellaneous Provisions Act, 1952 and by virtue thereof, an independent Trust by the name and title : Adecco Employees Provident Fund Trust" (hereinafter referred to as the 'Trust') was established for the benefit of the employees of the Applicant in connection with the Provident Funds and for processing the claim applications of the employees of the Applicant for withdrawal of the Provident Fund amount. The trust is an independent body est....
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....s the Respondent that holds the statutory payment and related benefits to the resources and by virtue thereof has attempted to justify the withholding of the payments for the services of the Applicant. The correct position, however, is that it is solely the Applicant that is responsible to discharge its obligations towards the wages/salaries of the resources and towards making the statutory payments and related benefits in favour of the resource, as has been aptly presented above. The contentions raised by the Respondent are not directed towards discharge of obligations by the Applicant towards payment of wages/ salaries of the resource but are relating to the transfer of the Provident Fund and Pension Fund and Pension of the resources which is not within the purview of the SPA but related to the affairs of the EPFO, the trust and its members. 34. The Operational Creditor also states that, drawing from above clarification that (a) the Respondent has at no point time raised any dispute with respect to the services as extended by the Applicant as specified in the 'Scope of Services' and that (b) the Applicant is the sole employer of the resources, the attention of the Tribun....
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.... that the same is for TDS for the period of 2012-13. For the said period the TDS certificates are duly provided. Therefore, there is no amount due for the said invoice. " In response to the same, it is stated that the said Invoice was raised against the TDS Receivable- Current Year's marked as Annexure A-5 (colly) in the Application and the reason stated for the same reads TDS reversal 2012-13'. Thereby being liable to be paid by the Respondent to the Applicant. It is further clarified in respect of the same that the TDS accounted against the Respondent for the F.Y. 2012-13 was Rs. 43,33,578/- (Rupees Forty-Three Lakhs Thirty Three Thousand Five Hundred Seventy Eight), whereas upon perusing the financial statements I was derived that the TDS deposited towards the same stood at Rs. 33,01,485/- (Rupees Thirty Three Lakhs One Thousand Four Hundred Eighty Five), thereby being short by an amount of Rs. 10,32,093/- (Rupees Ten Lakhs Thirty Two Thousand Ninety Three), as has been duly raised by the Applicant against the Respondent vide invoice dated 31.03.2018, thereby making the Respondent liable to be paid same to the Applicant. 38. The Applicant states that, with respect to ....
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....ous defense which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defense is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application." In the present case, there is no such dispute as pre-existing, the dispute which was being claimed to be pre-existing by the the corporate debtor did not survive. 43. The applicant has filed an affidavit under Section 9(3)(b) stating that no notice of dispute from Corporate Debtor is received. 44. The registered office of respondent is situated in New Delhi and therefore this Tribunal has jurisdiction to entertain and try this application. 45. On perusal of the record it is clear that the last payment was made by the Corporate Debtor on 17.11.2018. Hence, the claim is not time barred. And the present application is well within the limitation period. 46. In the given facts and circumstances, the present application is complete and the Applicant is entitled to claim its dues, establishing the defa....