2020 (1) TMI 1278

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....(CIRP) against JM Financial Services Limited (hereinafter called "Corporate Debtor") alleging that Corporate Debtor committed default on 22.08.2019 in making payment of Rs. 20,06,000/-, by invoking the provisions of Section 8 and 9 of the Insolvency & Bankruptcy Code (hereinafter called "Code") read with Rule 5 and 6 of Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016. 2. The petition reveals that the Petitioner is a Sole Proprietor of "Executive Power", engaged in providing consultancy/recruitment services to recruit officers at various levels for an organization. 3. On 01.04.2016 the Petitioner and the Corporate Debtor executed an agreement under which the Petitioner was to provide recruitment services to ....

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....gned within three months of his joining, in accordance with the provisions of the agreement. c. The Corporate Debtor is not liable to make any payment towards the invoice dated 05.08.2019, received by the Corporate Debtor on 22.08.2019, until the Petitioner provides for a suitable replacement. d. The demand notice was issued after the letter dated 30.08.2019, whereby the Corporate Debtor called upon the Petitioner to comply with his obligations under the said agreement. 7. The Petitioner has enclosed the following letter dated 30.08.2019, sent by the Corporate Debtor to the Petitioner, which was before the issue of demand notice dated 07.10.2019, to show that there is a pre-existing dispute. "Executive Power (C....

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....shows that the candidate selected by the Petitioner was not in a position to cope up with the job requirements of the Corporate Debtor and left the organization, for which the Corporate Debtor sought a suitable replacement. This clearly shows that the candidate selected by the Petitioner is not up to the mark as it is amply proved that the person had resigned for the reason that he was not in a position to cope up with the job. It is to be seen that the Petitioner is charging a fee of Rs. 20,06,000/- and the selected candidate worked for less than three months. 9. The agreement entered between the Petitioner and the Corporate Debtor on 01.04.2016 provides as below; "FEES CREDIT, NON-SOLICITATION In the event that, in re....

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.... the corporate debtor is not liable to make the payment as claimed by the petitioner, as there is no debt. Hence dispute raised by the corporate debtor squarely falls under section 5(6)(a) of the code. 11. Section 5(6) of the Code provides as below: "dispute includes a suit or arbitration proceedings relating to- (a) the existence of the amount of debt; (b) the quality of goods or service; or (c) the breach of a representation or warranty;" 12. It is beneficial to refer to the judgement of the Hon'ble Supreme Court in the case of Mobilox Innovations Pvt. Ltd. v/s. Kirusa Software (P) Limited- 2017 (SCC Online SC 1154) wherein it was held as below:- "40. Therefore, all that the adjudicat....