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TMI Blog2019 (1) TMI 1252X X X X Extracts X X X X X X X X Extracts X X X X ..... .1992 under the provisions of the Companies Act, 1956 having its registered office at office C- 23, G.K. Enclave-1, New Delhi-110048. Since the registered office of the respondent corporate debtor is in Delhi, this Tribunal having territorial jurisdiction over the place, is the Adjudicating Authority in relation to the prayer for initiation of Corporate Insolvency Resolution Process in respect of respondent corporate debtor under sub-section (1) of Section 60 of the Code. 3. The case of the applicant as stated in the application is that the applicant had applied for the post of Civil Engineer in the month of September, 2002 in the respondent company. On selection appointment letter dated 03.10.2002 was issued to the applicant by the respondent company with a gross salary of Rs. 1,20,000/- per annum. Later on, the salary got increased to many folds and the last drawn salary package of the applicant Operational Creditor was approximately 27 Lacs. 4. It is stated in the application that Operational Creditor was forced to give his resignation on 27.05.2015 and it was told that the company is not able to give him salary. Accordingly, applicant gave his resignation letter and got relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch it is alleged that false and frivolous grounds were taken to avoid the payment of legal dues of operational Creditor. It is stated that the company has suffered loss of Rs. 15,00,000/- lacs due to default committed by applicant operational creditor. It is further stated that as per the employment contract one-month notice was to be given before the resignation, which has not been done by the operational creditor causing huge loss to the company. 12. In this regard applicant has contended that the resignation was given because operational creditor was compelled to leave the job by the company. It is further argued that no such objection was ever taken by the corporate debtor at the time of resignation or at any point of time within last 2 years. Applicant has denied that no belongings of the company has been kept by him, nor even any written communication was ever made by the company. It is alleged that the said objection is nothing but a lame excuse given by the corporate debtor to avoid the payment of legally recoverable dues. 13. In connection with the civil suit, applicant has submitted that the corporate debtor maliciously filed the civil suit before the civil judge to cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eplaced the applicant was not able to execute the work with the pace which was supposed to be done for a period of three months. Accordingly, Respondent had to incur a financial loss of INR 15,00,000/- (appx.) due to the wilful negligence and default committed on the part of the Applicant for the delay in execution of the project. 19. It is also the case of respondent that there is an existence of dispute between the parties with regard to the payment, even prior to the issuance of the Section 8 notice of the Code. The factum of the dispute was also brought to the knowledge of the Operational Creditor/Applicant in the reply to the notice under Section 8 of the Code. It is submitted that after the Applicant resigned from the office, without giving prior notice and handing over requisite documents, the Respondent has suffered financial loss and many projects were delayed. 20. It is further submitted that the respondent had sent two legal notices for the recovery of Rs. 15,00,000/- for the loss occurred to the Respondent, as applicant herein has left the organization without giving prior notice and handing over requisite documents. 21. It is further submitted that the Respondent ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not issued to the respondent company, applicant prayed for withdrawal of the application. Accordingly, IB No. 321(ND)/2017 was dismissed as withdrawn on 18.09.2017 with liberty to file fresh petition. 27. Pursuant to the liberty granted the present IB No. 521(ND)2017 has been filed afresh on the same cause of action. 28. The following relevant date wise developments as detailed in the case records are reproduced below for proper appreciation of the matter. 27.05.2015 The applicant submitted his resignation. 04.04.2017 Legal notice was given by applicant for salary dues. 21.07.2017 Notice under Section 8 of the Code was issued on behalf of the applicant 25.05.2017 Reply of respondent to the legal notice. 27.07.2017 Reply of respondent to the notice issued under Section 8 of the Code. 29.08.2017 Initial Section 9 application filed in the matter. 18.09.2017 Dismissed as withdrawn with liberty to file fresh petition 20.09.2017 Notice issued by respondent for recovery. 25.09.2017 Notice issued by respondent for recovery. 05.10.2017 Fresh notice under Section 8 was issued before filing the present petition. 16.10.2017 Reply to Section 8 notice by respondent 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can lodge recovery suit even on the last day of the three years limitation period. Respondent had an offsetting claim and suit has been filed within the limitation period as per the provisions of law. Therefore, until the outcome of the pending recovery case, the claim/'counter claim of loss' remains disputed. 33. Existence of dispute largely depends on the facts and circumstances of each case. In the factual background of this case 'existence of real dispute' cannot be totally overruled. 34. Existence of an undisputed operational debt is sine qua non for initiating CIRP under Section 9 of the Code. The Code is not intended to be substitute to a recovery forum. The moment there is existence of a dispute, the corporate debtor gets out of the clutches of the Code. 35. The expression "existence" has been understood as follows: "The Shorter Oxford English Dictionary gives the following meaning of the word "existence": a. Reality, as opp to appearance. b. The fact or state of existing; actual possession of being. Continued being as a living creature, life, esp. under adverse conditions. Something that exists; an entity, a being. All that exists. (Page 894 - Oxford ..... X X X X Extracts X X X X X X X X Extracts X X X X
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