TaxTMI 
TaxTMI 
2022 (8) TMI 1112
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....ivastava ) This appeal has been preferred by the Appellant under Section 61 of the Insolvency and Bankruptcy Code, 2016 (hereinafter called 'IBC') aggrieved by the Order dated 29.1.2020 passed by the National Company Law Tribunal New Delhi (Adjudicating Authority) in CP(IB) No. 1972 (ND) of 2019 (hereinafter called 'Impugned Order') whereby the Adjudicating Authority dismissed the insolvency petition. 2. Stated in brief, the case of the Appellant is that he was appointed as a Whole Time Director (in short 'WTD') in the corporate debtor-company vide a Board Resolution dated 28.9.2015 which was ratified in the Annual General Meeting (AGM) of the corporate debtor on 29.9.2015. Subsequently the corporate debtor filed form MR-1 along with ....
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.... appellant has, therefore, claimed that he has not disputed his termination as CFO of the corporate debtor and the aforementioned writ petition was dismissed as being pre-mature and not on the basis of any dispute between the Appellant and Respondent. The Appellant has claimed that the Adjudicating Authority has, therefore, erred in presuming the action through WP No. WP(C) 4407/2019 was in relation to some dispute prior to delivery of demand notice, and rejected the section 9 application on such basis. 4. We heard the arguments advanced by learned counsels of both the parties and perused the record. 5. The learned counsel for appellant has submitted that he was appointed as CFO of the corporate debtor on 10.3.2014 and later as Additi....
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....appeal paperbook) filed by the corporate debtor on the portal of the Ministry of Corporate Affairs with his total remuneration fixed as Rs.86,49,600 p.a which is mentioned in Form MR-1. She has further submitted that vide letter dated 2.7.2018, an annual salary increment for the year 2018-19 was given to the Appellant, with his revised salary fixed at Rs. 9,50,000 p.m. for the period 2018-19. It is her contention that the appellant was paid his due salary and termination benefits for his work as CFO till March 2019 whereas he continued to work as WTD till 20.5.2019, when he was removed as WTD through a board resolution in an Extraordinary General Meeting of the corporate debtor. She has argued that the appellant was not paid any remuneratio....
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....nd other benefits in March, 2019 only after termination of his services as CFO, whereas no payment has been made for the period 1.4.2019 till 20.5.2019 when the Appellant continued to work as WTD. She has clarified that the emoluments of the WTD are included in the form MR-1 which was filed by the corporate debtor after Appellant's appointment as WTD, and the calculation for the debt due for payment is given in the calculation sheet (attached on page 113 of the appeal paperbook, vol.I.) 10. It is noted that the appellant was employed as CFO of the corporate debtor vide appointment letter dated 10.3.2014 (attached at pp.138-146 of the appeal paperbook, Vol.I). A perusal of this letter of appointment makes it clear that it does not include....
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.... the company. 12. In the order in WP (C) 4407/2019, the Hon'ble High Court of Delhi has held as follows:- "W.P.(C) 4407/2019 & CM APPL. 19626/2019 & 19628/2019 Vide the present petition, the petitioner seeks restraining the respondent no. 2 from accepting or admitting Form DIR-12 or any other forms, that might be filed with the respondent no. 2, by the respondent no. 4-Company, pursuant to the illegal termination of the petitioner, who has been a whole time director of the respondent no.4-Company. Counsel for respondent no. 4, who appears on advance notice, admitted that the petitioner is a Director as on date and there is no process started for removing him as a whole time Director from respondent no.4-company....
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....that such notice must bring to the notice of the operational creditor the "existence" of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the "dispute" is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except ....