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2023 (2) TMI 44
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....d order, the present appeal has been preferred by the Appellant/Operational Creditor. 2. Placing before us the brief factual background of the case, the Learned Counsel for the Appellant/Operational Creditor submitted that the Appellant started working with Delagua Health India Pvt. Ltd./Corporate Debtor ("DHIPL" in short) since 11.02.2014 as Director of the Corporate Debtor and tendered his resignation from the position of Director of the said DHIPL on 02.07.2017 with immediate effect. He has not been paid salary from January 2016 till June 2017 amounting to Rs.40,50,000/- and further submitted that the said operational debt of the Corporate Debtor fell due on 30.06.2017. Not having received the said payment, a demand notice was sent to the Corporate Debtor/Respondent No. 1 on 15.06.2019. It was added that the demand notice was duly despatched at the address of the Corporate Debtor. Submitting further, it was mentioned that the Appellant did not receive any response from the Corporate Debtor by way of any notice of existence of dispute nor any payment was received and hence an application under Section 9 of IBC was filed before the Adjudicating Authority. 3. The Learned Counsel ....
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....ppellant resigned from the Directorship of the Corporate Debtor company with effect from 02.07.2017 without sending proper intimation to the shareholders of the Corporate Debtor. The abrupt resignation of both Directors had caused a void in the Board of the Corporate Debtor company. Further, because of the said void on the Board, the Appellant continued to remain in control of all modes of communications in respect of Corporate Debtor company and hence by design ensured that the demand notice never actually got served upon the Corporate Debtor. In this way the Appellant intentionally and deliberately shut the opportunity for the Corporate Debtor to respond to the Section 8 notice. 5. Furthermore, though the Appellant and KKV had submitted their respective resignations on the same day and the Appellant had full knowledge of the resignation of KKV, he acted in collusion with KKV and chose to serve Section 8 demand notice upon KKV with an ulterior motive. And KKV even though he had already resigned as Director of the Corporate Debtor, presented himself before the Adjudicating Authority on behalf of Corporate Debtor/Respondent No.1 and unauthorisedly expressed inability to pay the amo....
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....t items 9 (i) and (ii) above are interlinked, we proceed to examine both these issues conjointly. It is noted that the Section 8 demand notice dated 15.06.2019 was addressed by the Appellant to DHIPL at the address 119/120, Model Basti, New Delhi - 110005 as well as to KKV as placed at Page 70 of Appeal Paper Book ("APB" in short). It is the submission of the Appellant that according to Company Master Data as on 21.07.2019 as placed at Page 86 of the APB, the registered address of the Corporate Debtor company is 119/120, Model Basti, New Delhi-110005 with email ID being [email protected]. It is also submitted by the Learned Counsel for the Appellant that proof of service of the said demand notice to both the addressees have been placed at page 75 of the APB alongwith tracking receipt placed at page 76-78 of the APB. The Learned Counsel for the Appellant has placed reliance on the judgment of this Tribunal in Alloys Min Industries Vs. Raman Casting Pvt. Ltd., in Company Appeal (AT) (Ins.) No. 684 of 2018 (2019 SCC OnLine NCLAT 492) to contend that since the demand notice had been sent at the registered address of the Corporate Debtor company, there was no infirmity in t....
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....e Appellant as may be seen at page 93 of APB. This lends force to the contention of the Respondents that the Appellant had connived with KKV to manipulate the Section 9 proceedings in his favour by making KKV unauthorisedly represent on behalf of the Corporate Debtor company. We are therefore of the considered view that the Adjudicating Authority had not committed any mistake in observing that the Section 9 application was collusive and dismissed it on the same grounds. 13. The Learned Counsel for the Appellant submitted that intervention on the part of shareholders of the Corporate Debtor company is not permissible while adjudicating a matter under Section 9 of the IBC. Further, it was submitted that since the shareholders and the Corporate Debtor had status of separate legal entities, hence, Respondent No.2 and 3 being shareholders, did not enjoy locus to participate in the Section 9 proceedings taken up by the Appellant against the Corporate Debtor company. In support of this contention, reliance has been placed by the Learned Counsel for the Appellant on the judgement delivered by the Hon'ble Supreme Court in Pratap Technocrats (P) Ltd. v. Monitoring Committee of Reliance Infr....
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....ltancy Agreement was placed on record much later by the Appellant and that too only after directions were issued on 06.09.2019 by the Adjudicating Authority to produce the original documents. It is also the contention of the Respondents that this agreement constituted the basis of relationship between the Appellant and the Corporate Debtor company and that this continues to subsist. On the other hand, it is the contention of the Appellant that this Consultancy Agreement was superseded by an Employment Agreement dated 01.08.2014 and since their dues arise from this Employment Agreement, only the Employment Agreement was mentioned in their Section 9 application. Thus, there is no attempt on their part to suppress the Consultancy agreement and it is the Respondents who are misleading this Tribunal by making a mention of the Consultancy agreement which has been superseded by the Employment Agreement. 15. It is an admitted fact by both parties that the Consultancy Agreement is dated 04.11.2013 while the Employment Agreement is dated 01.08.2014. The Appellant was appointed as Director in the Corporate Debtor company on 11.02.2014 which was before the Employment Agreement was signed. Bas....
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....e Services as a result of any present or future engagement, employment or other concern." 17. It is the contention of the Respondents No. 2 and 3 that in breach of the said terms and conditions of the Consultancy Agreement, the Appellant while still serving as Consultant with Respondent No. 1 company started engaging himself in the activities of a competing entity, Caya Constructs ("Caya" in short). In support of their contention, we notice that they have submitted on record, at pages 37-51 of the Reply Affidavit, few e-mails dated 16.02.2016, 08.03.2016 and 22.06.2016 which purportedly indicate the direct involvement of the Appellant in generating business for Caya the competing entity while still serving as Consultant in Respondent No. 1 company. 18. The Appellant has not denied their association with Caya but it has been submitted by the Learned Counsel for the Appellant that Caya dealings being in the field of toilet construction while the Respondent No. 1 company is engaged in water testing services, Clauses 9.1 and 9.2 of the Consultancy Agreement is not attracted. Since both these areas constitute different domains of specialisation, there was no violation of the agreement....