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TMI Blog2018 (7) TMI 1912X X X X Extracts X X X X X X X X Extracts X X X X ..... lution Process in respect of Stone India Limited. Moratorium order is passed for a public announcement as stated in Sec.13of the IBC, 2016. - CP (IB) NO. 203 (KB) OF 2018 - - - Dated:- 17-7-2018 - SHRI JINAN K.R., MEMBER (JUDICIAL) For The Applicant : Prodyut Banerjee, Adv., Raj Singhania, CA and Pratip Mukherjee, Advocates For The Respondent : Mr Adheesh Agarwal, Advocates JUDGMENT SHRI JINAN K.R., MEMBER (JUDICIAL) 1. This is an application filed by Debashis Chakravarty/Operational Creditor under Section 9 of Insolvency and Bankruptcy Code, 2016 (in short I B Code) for initiating corporate insolvency resolution process as against the Respondent/Corporate Debtor, Stone India Ltd. 2. Brief averment are that the applicant was appointed as the Managing Director and CEO of the Corporate Debtor company for a period of three years effective from 1st December, 2014 upon the terms and conditions stipulated in the appointment order subject to approval of shareholders and the Central Government. As per the terms and conditions of the appointment, the salaries and allowances are:- (i) Basic salary - ₹ 2,60,000/- per month, (ii) Special all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of duty and negligence on the part of the Operational Creditor. The Respondent further alleges that an internal investigation had been launched against the Operational Creditor, through which it has been emerged that the Operational Creditor had sought to accept commission from a client of the Corporate Debtor for some favours which is detriment to the interest of the Corporate Debtor and result of misconduct and moral turpitude of the Operational Creditor. The respondent also alleged that in this context, an internal memo has been issued to the Corporate Debtor. 7. The respondent also refers an email address by the Operational Creditor, in which the matter of supplying 56 elevators was involved and providing a commission of 1% to 2% was being talked about. This is highly objectionable and detrimental to the interest of the Corporate Debtor. The Corporate Debtor further contends that nothing is due and payable to the Operational Creditor. The remuneration of the Operational Creditor was subject to the approval of the Central Government. The Corporate Debtor had received such approval only upto an extent of ₹ 84 lakhs per annum for the period of 3 years w.e.f. 01.12.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose any pending enquiry, allegedly initiated against the applicant at the time of relieving from the service of the Corporate Debtor. If there were any pending enquiry, nothing prevent the employer refer the enquiry in the relieving letter. Being relieved without having any adverse remarks against the applicant it is impossible to believe the contention on the side of the respondent that pending enquiry he was relieved and therefore there is pre-existing dispute. Therefore, cause production of a memo allegedly issued to the applicant, in the absence of proof of delivery of the said memo to him cannot be taken as a proof proving pending enquiry as against him. 13. The Ld. Counsel for the respondent/corporate debtor submits that the applicant's service as Managing Director cum CEO was not satisfactory and during his service period, the liabilities of the Corporate Debtor have increased and that the applicant is responsible for the losses of the Corporate Debtor. According to him it is why an enquiry proceeding was initiated for the various misconduct and misfeasance on the part of the applicant. So also it is submitted that the applicant has demanded commission from certain su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f email also does not strengthen the respondent that there exists a dispute regarding demanding of commission by the applicant from its customers. Moreover, the reply to the said letter does not give an inference that he demanded the commission as alleged. The email of the applicant is dated 5th May, 2017. It is significant to note that immediately after 05.05.2017, he has tendered resignation on 11.05.2017. Therefore, it cannot be inferred that the applicant demanded commission as alleged by the respondent. 16. At this juncture, referring to Annexure C , the Ld. Counsel for the respondent submits that the salary and allowances at the rate the applicant claimed is not liable to be paid by the respondent because the Central Government did not approve the monthly salary and allowances as agreed, as per the appointment order and that remuneration to the tune of ₹ 84 lakhs per year alone is entitled to realise by the petitioner from the respondent company and that too after fixing the applicant's liability to the losses due to the mismanaging the company's affairs. The said contention also is found devoid of any merit. 17. Truly, as per the appointment order, the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bankruptcy Code, 2016 shall be made immediately. (iii) Moratorium under Sec.14 of the Insolvency Bankruptcy Code, 2016 prohibits the following: (a) The 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; (b) Transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) Any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); (d) The recovery of any property by an owner or lessor where such property is occupied by or in possession of the corporate debtor. (iv) The supply of essential goods or services to the Corporate Debtor as may be specified shall not be terminated or suspended or interrupted during the moratorium period. (v) The provisions of sub-section (1) shall not apply to such transactio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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