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TMI Blog2017 (10) TMI 463X X X X Extracts X X X X X X X X Extracts X X X X ..... de) has been dismissed. 2. In the impugned order, the Tribunal, taking into consideration different facts, including the documents whereby Appellant in respect of claim/operational debt due on various Heads of workers like payment wages, salaries, bonus, provident fund, gratuity in respect of different workmen held that the application preferred by the Appellant under Section 9 is not maintainable. 3. The only question arises for determination in this appeal is whether an application under Section 9 of the I&B Code is maintainable at the instance of Workmen Association? 4. Ld. Counsel for the Appellant while submitted that the Adjudicating Authority has accepted that the Respondent/'corporate debtor' cannot deny the liability for making payments of workmen's wages, contended that illegal acts and conduct of the 'corporate debtor' is glaring from the facts as narrated. It was submitted that the conduct of the 'corporate debtor' has already been deprecated by Hon'ble Supreme Court in Ghanshyam Sarda v. Shiv Shanker Trading Co. & Ors." [2014] 2015 (1) SCC 298. and in number of pending proceedings under provisions of SICA, 1985 the 'corporate debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly authorized to act on behalf of the workman. As the Appellant is a Trade Union, it lacks authority to issue demand notice/file an insolvency application against the answering Respondent under the I&B Code. 10. According to Respondents, there is a pre-existing dispute prior to filing of Section 9 application; a civil suit, "Juggilal Kamlapat Jute Mills Co. Ltd. v. J.K. Jute Mazdoor Panchayat (CITU)" is pending before the Civil Court of First Additional Civil Judge (CD), Kanpur Nagar. Another Writ Petition titled "J.K. Jute Mills Mazdoor Ekta Union v. UoI" is pending wherein the Appellant is also a party and the matter is pending against the Respondent before the High Court of Delhi. 11. It was also submitted that the Respondent/'corporate debtor' is in lockout and no dues are payable to the workmen/employees. 12. Ld. Counsel for the Respondent relied on decision of this Appellate Tribunal in "Kirusa Software Pvt. Ltd. v. Mobilox Innovations Pvt. Ltd"", and submitted that by judgement dated 24th May 2017, this Appellate Tribunal held that where there is a pre- existing dispute, the petition under Section 9 is not maintainable. It was also contended that the Appellant al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /employee cannot afford to invoke the provision of the I&B Code in view of the cost of litigation and, therefore, the court must give effect to the purport and object of the Act and Rules thereof and 'purposive construction' should be made applicable in the present case. Request has been made to set aside the impugned order and remit the matter to the Adjudicating Authority to admit the application. 16. In this appeal it is not necessary to decide whether the Appellant/Trade Union come within the meaning of 'person' as defined in sub-section (23) of Section 3 of the I&B Code which reads as follows:- "3. In this Code, unless the context otherwise requires, - (23) "person" includes- (a) an individual; (b) a Hindu Undivided Family; (c) a company; (d) a trust; (e) a partnership; (f) a limited liability partnership; and (g) any other entity established under a statute, and includes a person resident outside India;" 17. Even if it is accepted that the Appellant/Trade Union come within the meaning of 'person', according to us it do not fall within the meaning the meaning of 'operational creditor' as defined in sub- section (20) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o are workman or employee of a 'corporate debtor', some amount may be due to such individual workman/employee from a 'corporate debtor' including salary, gratuity, provident fund etc., in view of services rendered by them, but in such cases, in respect of each workman there will be separate cause of action, separate claim and separate date of default of debt. 23. For example, as pleaded by 19 Interveners, each workman/employee and those deceased and now represented through their widows or legal heirs/legal representatives in respect of each of them, there are separate claim of salary or retirement benefits or other dues for different period. In majority of the cases, the date of default of debt will also be different. Without ascertaining any such amount no application under Section 9 in Form 5 will be complete nor the Adjudicating Authority can give any finding with regard to the individual claim nor it will be in possible for the Interim Resolution Professional to collect the details. 24. There may be workmen/employees who are also member of the Workmen Association/Trade Union but may not have any claim at all. In absence of their debt or default no application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demanding payment or demand notice delivered by the operational creditor to the corporate debtor;, (b) an affidavit to the effect that there is no notice given by the corporate debtor relating to a dispute of the unpaid operational debt; (c) a copy of the certificate from the financial institutions maintaining accounts of the operational creditor confirming that there is no payment of an unpaid operation debt by the corporate debtor; and (d) such other information as may be specified. (4) An operational creditor initiating a corporate insolvency process under this section, may propose a professional to act as an interim resolution professional " 19. From the aforesaid provisions of Section 8 and 9 of I&B Code, it is clear that unlike Section 7, a notice under Section '8 is to be issued by an "Operational Creditor" individually and the petition under Section 9 has to be filed by Operational Creditor individually and not jointly. 20. Otherwise also it is not practical for more than one 'operational creditor' to file a joint petition. Individual 'Operational Creditors' will have to issue their individual claim notice under Section 8 of the I&B Code. The claim w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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