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TMI Blog2018 (12) TMI 966X X X X Extracts X X X X X X X X Extracts X X X X ..... is petition as, under section 9(5)(2)(d), the notice of dispute has been received by the Operational Creditor. - CP 1664/I&BP/NCLT/MAH/2018 - - - Dated:- 16-11-2018 - Shri V.P. Singh, Member (Judicial) And Shri Ravikumar Duraisamy, Member (Technical) For The Petitioner : Sanjay Balakrishnan, Advocate For The Respondent : Burzin Bharucha, Advocate and Arti Deodher, Advocate i/b Nilesh Tribhuvan, Advocate ORDER Per V P Singh, Member 1. It is a Company Petition filed u/s 9 of Insolvency Bankruptcy Code, 2016 ( IBC ) by Sanjay Jijaba Landge, Operational Creditor against CORE Energy Systems Private Limited, Corporate Debtor, to initiate Corporate Insolvency Resolution Process ( CIRP ) against the Corporate D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.2016. 5. It is the case of the petitioner that Mr Nagesh N. Basarkar, falsely alleged that the Petitioner voluntarily agreed to a reduction in salary and was reluctant to follow the termination of services procedure as per the appointment letter whereby the petitioner would be entitled to either three months prior written notice or three months salary in lieu thereof. The Petitioner has alleged that the Respondent started harassing him by diverting all the work from the Petitioner, stopping all the communication with the Petitioner and by snooping on him. The Petitioner has alleged that the Respondent has created the resignation letter of the Petitioner. The Petitioner submits that he agreed to discontinue his services and that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p.a. The Respondent received the Demand notice on 03.03.2018 and replied vide its letter dated 09.03.2018 disputing the subject matter of the Petition . 7. The Respondent in its reply has submitted that the Petition is liable to be dismissed as there exists prior dispute about the subject matter of the Petition , and the same dispute was also raised in its reply to the Demand notice vide letter dated 09.03.2018. The Respondent has alleged that the Petitioner s performance was not satisfactory and he was provided multiple opportunities to improve the same. The Respondent states that the reduction in the salary of the Petitioner was mutually and amicably negotiated with the Petitioner under his under-performance as well as the Responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... que of ₹2,02,670/- to the Petitioner for the vouchers pending for payments until October 2017 and part of the Petitioner s annual benefit LTA. In the said letter dated 01.12.2017, the Respondent has stated that they are still calculating the outstanding amounts due to the Petitioner. Further, vide an email dated 08.12.2017, sent to the Petitioner, the minutes of the meeting held on the same day states that the computation list of full and final settlement was presented and explained to the Petitioner who did not agreed to it. 8. The Respondent in its affidavit in reply has relied upon its letter dated 30.12.2017 addressed to the Petitioner giving his full and final settlement calculation sheet along with the cheque for full and fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not yet been paid? And ( iii) Whether there is existence of a dispute between the parties or the record of the pendency of a suit or arbitration proceeding filed before the receipt of the demand notice of the unpaid operational debt in relation to such dispute? If any one of the aforesaid conditions is lacking, the application would have to be rejected. 11. The Hon ble Supreme Court has further settled the law that the Adjudicating Authority must reject a Petition under section 9(5)(2)(d) if a notice of dispute is received by the Operational Creditor that brings to his notice the existence of a dispute. At this stage, the Adjudicating Authority have to determine whether it is a plausible contention requiring further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court, it is now well settled that in order to determine if there exists a dispute, the Adjudicating Authority has to decide if the correspondence between the parties show that the Operational Creditor has a notice of dispute with regard to the subject matter of the petition and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence without examining the merits of the dispute. 13. Coming to the facts of the present petition, the Petitioner has sent the demand notice dated 23.02.2018 to the Respondent who had received the same on 03.03.2018 and replied on 09.03.2018. The Respondent in reply to the demand notice under section 8 has raised dispute upon the conduct of the Petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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