2022 (8) TMI 1618

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....porate Debtor (in short CD). Brief Facts: 2. Appellant- Captain S.P. Singh is a certified Pilot and was engaged by Respondent to fly helicopter for BSF. Appellant was offered employment by the Respondent, a private limited company, engaged in the business of Aviation Consultancy and Helicopter Services. On 27.11.2012 the appointment letter was issued to the Appellant. The appointment letter is annexed as A-4 in the 'Memo of Appeal'. The said appointment letter contains the terms and conditions, mainly consolidated salary of Rs. 2,50,000/- per month with mediclaim policy for Rs. 2.50 Lakhs. The Appellant has claimed that in addition to salary, the Appellant is also entitled for benefits like leave encashment, reimbursement of mess bill, telephone bills, travel bill, journey expenditure etc. It is further mentioned that he has worked sincerely during the period 2012-2014. The Appellant also states that the Respondent, vide letter dated 22nd March, 2014 'letter of offer for the post of Pilot' has altered the terms of his employment and salary was revised to Rs. 1,70,000/- per month with mediclaim policy of Rs. 1.5 Lakh. This letter also mentions about payment of extra amount of ....

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....e Adjudicating Authority did not consider the leave encashment entitlement of the Appellant and the termination letter was only an afterthought which has been done despite his clean record. It is argued that the termination of service was due to the termination of contract of Respondent with BSF and not due to poor quality of services of Appellant. 6. Learned Counsel has accepted the receipt of the emails dated 22nd March, 2014 and up to 7th May, 2016 which were referred to by the Adjudicating Authority as a pre-existing dispute but stated that only due to ill health, the Appellant could not fly. Learned Counsel has stated that the e-mail of the Respondent dated 12.06.2014 clearly mentions about the Appellants entitlement for leave encashment. Learned Counsel has assailed the Impugned Order dated 17.09.2020 citing the case of Hon'ble Supreme Court in Mobilox Innovation Pvt. Ltd. vs. Kirusa Software Pvt. Ltd. (2018 1 SCC 253) on the issue that the dispute need to exist prior to the issuance of demand notice. 7. Learned Counsel has cited the cases of Pedersen Consultants India Pvt. Ltd. vs. Nitesh Estates Limited 2019 SCC OnLine NCLAT 422 and Ahluwalia Contracts (India) Limited....

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.... the Respondent also mentioned that this averment was not there in Insolvency Petition and has been raised for the first time in the present appeal. Various claims of the Appellant of Rs. 1,66,268/- of salary dues Rs. 66,000/- for ferry flight payment and Rs. 1,16,691/- towards imprest amount were not even claimed in Appellant's own email dated 10.05.2017 and these claims were raised only after termination. As regards Appellants claim regarding no deficiency of services, the Learned Counsel has mentioned that the Appellant did not disclose that he was not flying for a period of two years prior to joining. According to Learned Counsel, Appellant did not follow the instructions of Respondent and also taken many unsanctioned leaves. Learned Counsel also brought out that Appellant did not vacate additional accommodation taken which caused problem to fellow pilots who were employed as substitute for the Appellant due to Appellant's non availability for flying. Learned Counsel also highlighted the Appellant unprofessional attitude while referring to the e-mail dated 18.03.2014 and 22.03.2014 of the Respondent. It is also claimed that Appellant was declared medically unfit for flying via ....

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.... "operational creditors" means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred;" Similarly, default is also define under Section 3(12) of IBC which as under:- "3(12). "default" means non-payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not [paid] by the debtor or the corporate debtor, as the case may be; 14. The Appellant has claimed an outstanding amount of Rs. 1,66,268/- against monthly salary of notice period and Rs. 1,16,691/- against imprest amount Rs. 8,55,000/- against leave encashment for year 2014 and Rs. 1,80,000/- against leave encashment for year 2015. Thus, total dues claimed by the Appellant against respondent was Rs. 13,17,959/-. We have perused the appointment letters dated 27.12.2012 & 22.03.2014 by which the Appellant was offered the post of pilot by the Respondent. The appointment letter dated 27.12.2012 mentions the emolument of Rs. 2,50,000/- per month and provision of mediclaim policy for the Appellant for Rs. 2.50 Lakh along with insurance. This appointment letter also includes the clauses related to p....

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....aims of Rs. 88,000/- regarding accommodation dispute and Rs. 2,25,000/- for excess leave availed. On this issue, we find that the Adjudicating Authority is right in rejecting the claims of appellant for any debt due which has been defaulted. Issue No. b):- Whether any pre-existing disputes were pending before issue of demand notice. The Respondent has mentioned that there were pre-existing disputes prior to issue of demand notice by Appellant on 16.03.2018. The Appellant, however, has denied any such pre-existing disputes. We need to see the definition of dispute as given in Section 5 (6) of IBC which is as under:- "5 (6) "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;" (d) The Hon'ble Supreme Court in Mobilox Innovations Private Limited vs. KirusaSortware Private Limited has settled the law regarding preexisting dispute very clearly. The relevant portion is as under:- "The adjudicating authority, when examining an application under Section 9 of the Act will have to det....