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TMI Blog2017 (9) TMI 1077X X X X Extracts X X X X X X X X Extracts X X X X ..... ty Rules, 2016, against South Eastern Carriers Pvt. Ltd., a corporate debtor. 2. The Corporate Debtor South Eastern Carriers Pvt. Ltd., Identification No. is U63090WB1974PTC085862. The registration number of the proposed interim resolution professional is Mr. Pradip Kumar Roy Chowdhury, Registration No.IBBI/IPA/00l/IP-00112/2016-17/1158 of 8B, Middleton Street, 6A, Geetanjali Building, Kolkata 700 071, email id [email protected]. 3. The applicant has stated that the total amount of debt is Rs. 35,00,000/- on salary account from May 2016 to February 2017. 4. The applicant demanded the aforesaid amount from the corporate debtor by demand notice dated 25/3/2017 which was delivered to the corporate debtor on 31/3/2017. The applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the corporate debtor that the main proceeding being CP No.42/2016 is pending before the Tribunal as such the present application is not maintainable. 9. Heard ld. Counsel for the parties and perused the record. On perusal of the record it appears that application has been filed under Sec.9 of the Insolvency & Bankruptcy Code read with Rule 6AA Rules, 2016. 10. The applicant has stated in the application that the alleged amount is on account of salary dues, due to non-payment of salary from May 2016 to February 2017. The applicant has filed Annexure C copy of the demand notice with the copies of details of computation chart of salary account, as Annexure D. Applicant has also annexed the copy of bank statement as Annexure I along with c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record that the operational creditor has encashed a cheque issued by the corporate debtor. Sub-section 5 of Sec.9 of the IB Code, 2016 adjudicating authority has power to admit the petition only if the following conditions are fulfilled: - If the application made sub-rule (2) of Sec.9 is complete, there is no repayment of unpaid operational debt; Notice of invoice of payment to the corporate debtor has been delivered by operational creditor; There is no disciplinary proceeding pending against the IRP. Only on the fulfilling the above requirements, the petition can be admitted under Sec.9 of the IB Code, 2016. 12. In this case admittedly the petitioner has not given any document to prove the date of service of notice on the corporate de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 and the documents which have been filed by the corporate debtor in reply clearly indicates that dispute is pending between the parties before the NCLT and claims of operational creditor is based on the order of the NCLT in that case. In case of pre-existing dispute, provision of Sec.9 of IB Code cannot be invoked. 15. In view of the law laid down in case of kirusa Software Pvt. Ltd. vs. Mobilox Innovations Pvt. Ltd. and Uttam Galva Steel Ltd. it is clear that dispute existed much prior to purported notice under Sec.8 read with sub-section (5) of the Code. 16. Hon'ble NCLAT has further upheld in the above case while sub-section (2) of Sec.8 deals with the existence of a dispute, sub-section (5) of Sec.9 does not confer and discretion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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