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TMI Blog2018 (10) TMI 1765X X X X Extracts X X X X X X X X Extracts X X X X ..... OK KUMAR MISHRA, MEMBER (TECHNICAL) For The Petitioner : Shri Abhishek Dutta along with Sayli Petiwale And Shri Vaibav M. For The Respondent : Shri Uday Shankar R. M. along with Ms. Asmita Deshpande ORDER Per : Rajeswara Rao Vittanala, Member (J) 1. C.P.(IB) No. 35/BB/2018 is filed by M/s. Pedersen Consultants India Pvt. Ltd. ( Petitioner ) under Section 9 of the Insolvency and Bankruptcy Code, 2016, read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, by seeking to initiate Corporate Insolvency Resolution Process in the case of M/s. Nitesh Estates Limited. 2. The brief facts of the case are as follows:- a. M/s. Pedersen Consultants India Pvt. Ltd., the Petitioner herein, is a private limited company incorporated on July 13, 2010. The Petitioner is the Indian branch of a leading international executive search firm. M/s. Nitesh Estates Limited, the Respondent is a public limited company incorporated on February 20, 2004, engaged in the real estate business. The Petitioner and Respondent had been dealing with each other since 2016. b. The Respondent had engaged the Petitioner to provide ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner served another notice of demand on November 28, 2017, to which no reply has been received from the Respondent. Hence, the present application is filed before this Hon'ble Tribunal. 3. The Respondent have opposed the application by filing Statement of Objection dated 08.05.2018 and the Statement of Additional Objection dated 14.09.2018, by inter alia, contending as follows: a. The instant Petition is not maintainable since there is dispute raised in respect of the subject matter of the Petition and petitioner Company itself has to return the excess money paid. b. The Petitioner was supposed to provide executive search for position of Vice President-Commercial, Vice President-Sales, Chief Operating Officer and Head Project-Finance. However, the Petitioner provided the services only for the executive search for Vice President-Commercial. So suitable candidates for appointment for the post of Chief Operating Officer and Head Project-Finance were not provided by the Petitioner and their posts are still vacant. c. The Respondent appointed a candidate Mr. Rajit Gupta on the recommendation of the Petitioner for the position of Vice President-Sales on 05.12.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner failed to provide suitable candidates for the position of Chief Operating Officer, Vice President-Finance. h. They have relied upon the judgment of the Apex Court in Mobilox Innovations (P.) Ltd. v. Kirusa Software Private Limited, and thus contended the Adjudicating Authority must reject the application under Section 9(5)(2)(d), if notice of dispute has been received by the Petitioner or there was a record of dispute in the information utility. The respondent has given a reply dated 20.12.2017. In response to reply dated 20.12.2017, by inter alia, stating that they have paid in full for the position of Vice President-Commercial and there was no outstanding amount due to it. The position of Chief Operating Officer, Vice President-Finance and CVs forwarded by them were not found suitable, and thus those positions are kept on hold. Mr. Rajit Gupta was terminated, due to submission of forged documents, w.e.f. March, 2017. It is further stated they have issued two notices dated 14.07.2017 and 28.11.2017. As per Clause 8 of the Agreement in question, the total fees for recruitment be fixed fee and the amounts At the time of signing 20% of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de Cheque No. 529067 dated 07.02.2017 drawn on Corporation Bank. l. That the position of VP Retail Commercial was filled up and the candidate Mr. Mahesh Laxman identified by the Petitioner was appointed and the amount of ₹ 13,78,800/- was payable by the Respondent. Payments made for Mr. Rajit Mehta shall be adjusted in the account of Vice President-Retail and Commercial. Total advance paid is ₹ 10,99,700/- and is available for adjustment for any recruitment made and will not be payable to the Petitioner for the completed recruitment. The amount paid by the Petitioner was appropriated without providing services. m. It is contended that against Invoice No. 1022/16 dated 14.04.16 for ₹ 3,43,500/- for an amount of ₹ 43,500/- is outstanding for code No. 2000178281 (COO). The petitioner has provided the resumes but they were not suitable for the Respondent and the Respondent is still waiting for the assignment to be completed by the Petitioner. In fact, the respondent has paid ₹ 3,43,500/- being 20% advance payable for the position but since the recruitment has not yet happened, it has adjusted the same against the appointment of VP Retail Commerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Raised Paid Out-standing 1. 08.04.2016 1021/16 2000478281 (VP - Retail and Commercial) 2,74,800 2,40,000 34,800 86 2. 27.06.2016 1038/16 4,14,000 0 4,14,000 87 3. 01.12.2016 1104/16 6,90,000 0 6,90,000 88 4. 14.04.2016 1022/16 2000178281 3,43,000 3,00,000 43,500 83 5. June 27, 2016 1037/16 (Chief Operating Officer-COO) 5,17,500 0 5,17,500 84 6. 17.08.2016 1056/16 2000278281 (Head of Project Finance-HOPF) 3,22 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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