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TMI Blog2017 (11) TMI 1525X X X X Extracts X X X X X X X X Extracts X X X X ..... HOTRA AND MR. S. K. MOHAPATRA, JJ. For The Operational Creditor : Mr. R. K. Gupta, Advocate, Mr. M. P. Sahay, Advocate For Corporate Debtor : Mr. Ashwaraya Sinha, Advocate And Mr. GiriBhalla, Advocate ORDER S.K. Mohapatra, Member (Technical) 1. This is an application filed under section 9 of the Insolvency and Bankruptcy Code, 2016 (for brevity the Code ) read with rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity the Rules ) with a prayer for initiation of Corporate Insolvency Resolution Process in respect of respondent corporate debtor. 2. It is the case of the applicant that he was appointed by respondent company M/s. Applied Electro Magnetics Pvt. Ltd. vide letter No. 2008/3871 dated 7th May, 2008 as Manager R D (Railway Projects) and placed in M-2, Grade with effect from 7th May, 2008 at the basic salary of ₹ 17000/- per month along with House Rent 55% of basic salary per month, with PF, Gratuity, LTA etc. The appointment letter dated 7th May 2008 issued by the respondent company has been placed on record. 3. It is submitted that the operational creditor, was appreciated for his wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of Section 9(3)(c) of the Code, the applicant has filed an affidavit dated 20.09.2017 alongwith a certificate dated 16.09.2017 issued by the Bank of India confirming that no amount has been deposited in the bank account of the applicant by the respondent company since 1st January 2017 till the date of the certificate. Another certificate dated 19.09.2017 from Deutsche Bank has also been enclosed confirming that no amount has been credited from the respondent company between 17/08/2017 to 18/09/2017 in the account of the applicant operational creditor. 9. Besides in compliance of Section 9(3)(b) of the Code, an affidavit dated 13.09.2017 has also been filed by the applicant operational creditor affirming that no notice is given by the corporate debtor relating to the dispute of the unpaid operational debt. 10. The Respondent Company has filed its reply on 14.09.2017 and raised objection against the application. It is submitted that as the amount claimed by the operational creditor is from May 2008, the claim of the operational creditor is barred by limitation. The other main objection raised is that there is an existence of dispute, as prior dispute is pending before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 59529 Total 2884160 14. A perusal of the admission made in the reply as quoted above reveals that as per the records of the respondent company the salary due to be paid to the applicant is ₹ 28,84,160. It has also been mentioned at para 15 (a) of the reply as quoted above that there is no outstanding amount pending except ₹ 28,84,160/-. This is clearly an admission by Respondent that a sum of ₹ 28,84,160/- is due to be paid to the applicant. 15. Operational debt has been defined under Section 5 (21) of the Code as follows: Operational Debt means a claim in respect of the provision of goods or services including employment or a debt in respect of the repayment of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority; Operational creditor has also been defined at section 5(20) as follows: Operation Creditor means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred 16. From the definition of Operational creditor and Opera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is seen that the alleged complaint was made to the Deputy Labour Commissioner by the applicant inter-alia for non- payment of salary of employees and to restrain from disposing off the assets of the company. Deputy Labour Commissioner in its letter dated 19.09.2017 declined to entertain the complaint on the ground that the applicant does not come under the purview of Labourer , as he was appointed as Manager having salary of ₹ 105450/- per month. The letter dated 19.09.2017 issued by Deputy Labour Commissioner has been placed on record. There is thus no dispute that no case is pending before the Deputy Labour Commissioner. It was only a complaint by the applicant. Further there is no document on record which can show that the respondent corporate debtor had raised any dispute regarding the salary dues of applicant before the Deputy Labour Commissioner. The Respondent has failed to place any document/correspondence disputing the claim of salary dues, prior to the demand notice issued under section 8 of the Code. Mere repudiating the claim in the reply without material particulars can be termed as vague, got up and to evade the liability. On the contrary there has been admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the company and will amount to violation of terms of employment. On this allegation also absolutely no documentary proof has been placed on record by the respondent. When a person is bound to prove the existence of any fact, the burden of proof lies on that person. Mere submission without any corroborative evidence would not help the respondent. Respondent has failed to establish his contention. 25. In the aforesaid background we are satisfied that the present application is complete and there has been part admission of salary dues and non-payment of the same has caused default by respondent. Therefore, on fulfilment of the requirements of section 9(5)(i)(a) to (d) of the Code, the present application is admitted. 26. A moratorium in terms of section 14 of the Code is being issued prohibiting the following: Institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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