TaxTMI 
TaxTMI 
TaxTMI 
2021 (1) TMI 932
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....imited (for brevity 'Respondent'). 2. The Applicant, the Operational Creditor ("OC") namely, Ms. Maja Hoellrigl is a person/ex-consultant, of the Corporate Debtor, residing at Boerhaavegasse 8a/1/308, Vienna, Austria. 3. The Respondent, the Corporate Debtor ("CD") namely, M/s. Endcraft India Private Limited, is a company incorporated on 28-1-2013, under the provisions of Companies Act, 2013 with CIN No. U25200DL2013PTC247629, having its registered office at 70, Okhla Industrial Estate, Phase-3, New Delhi 110020. The Authorised Share Capital of the respondent company is Rs. 5,00,00,000/- and Paid Up Share Capital of the company is Rs. 4,01,00,000/- as per Master Data of the company. 4. It is the case of the Operational Creditor that, she was working as a consultant for the Corporate Debtor providing consultancy in the area of her expertise during her visits to India. That vide a Consultancy Agreement dated 1-4-2018, the Operational Creditor was hired by Corporate Debtor as an Independent Consultant for providing Independent Advisory and Consulting Services during her visits to India. The Operational Creditor by way of the said Consultancy Agreement agreed to provide Consu....
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.... 8. The Operational Creditor states that, the Corporate Debtor has no right, to waive off Operational Creditor's running notice period and also, to not pay the notice period professional fee which she is liable to claim from the Corporate Debtor. As per clause 10.4 of the Consultancy Agreement, Operational Creditor is entitled to give a prior written notice of 180 business days (Six Months), before terminating the aforementioned agreement with Corporate Debtor. 9. Since August 2018, the professional fee has not been paid to the Operational Creditor, by the Corporate Debtor, which she is entitled to receive as per the Consultancy Agreement. The Operational Creditor further states that, she raised a combined invoice for Rs. 33,46,992/- (Rupees Thirty Three Lakhs Forty Six Thousand Nine hundred Ninety Two), for the notice period (August 2018 to January 2019), dated 30-9-2018 and requested the Corporate Debtor to clear it out as per the Consultancy Agreement. 10. On failure to pay the outstanding dues by the Corporate Debtor, the applicant sent a demand notice dated 27-10-2018, under Section 8 of the Insolvency and Bankruptcy Code, 2016, to the respondent, asking them to make the....
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....e date of default is 1-8-2018. 14. Hence, the application under section 9 of the IBC, 2016 was filed by the applicant to initiate CIRP. The counsel for Corporate Debtor appeared in court on 23-1-2019 and accepted notice, the Corporate Debtor was also granted ten days time to file its reply vide the order dated 23-2-2019. 15. The Corporate Debtor has filed its reply, In its reply the Corporate Debtor states that on 29-7-2016, the Operational Creditor was made group CEO of the DCJ group of companies, which included the Corporate Debtor, by the Promoters of the Corporate Debtor. On 1-4-2018, Operational Creditor entered into a Consultancy Agreement ('Agreement') with the Corporate Debtor, wherein the Operational Creditor was to provide its services for a period 3 of years, as per clause 3 of the Agreement. Operational Creditor's professional fees was fixed as Euros 6600 i.e., Rs. 5,27,886/- per month, as per clause 5 of the Agreement. The clause 10 of Agreement defined termination. 16. That on 4-7-2018 Operational Creditor resigned as a Consultant and under clause 10.4 of the Agreement was obligated to serve 180 days till Corporate Debtor finds a suitable replacement. C....
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....nders on 12-8-2018, 7-9-2018 and 6-11-2018 the Operational Creditor failed to return Corporate Debtor's confidential and proprietary data for almost three months upon her termination by the Respondent violating clause 8.3, clause 11(a), clause 11(b), clause 11(c) of the Agreement. 19. After the reply of Corporate Debtor, Operational Creditor has filed its rejoinder, in its rejoinder the Operational Creditor states that, on 27-10-2018, the Operational Creditor issued a Demand Notice against the Corporate Debtor which the Corporate Debtor responded to vide its response letter dated 6-11-2018. The Corporate Debtor issued a show cause notice dated 29-10-2018 after almost 3 months of termination of the Consultancy Agreement of the Operational Creditor w.e.f 4-8-2018 and also replied to the Demand Notice on 6-11-2018 creating a false/moonshine dispute to avoid the payment of the operational debt due to the Operational Creditors. 20. The so called moonshine dispute raised by the Corporate Debtor pertains to: a. Taking handover from one of the CEO's namely Mr. B. Muralidharan (ex-employee of the Corporate Debtor), who was asked to leave by the Corporate Debtor. Mr B. Muralidhar....