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TMI Blog2020 (1) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal and allotted T. P. No. 11 of 2017, listed on various dates from June 7, 2017 and directed the petitioner to comply with provisions of the Code. Accordingly, the petitioner has issued demand notice dated October 9, 2017 in Form 3 under rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 to the respondent by demanding to pay the outstanding amount and also complied with the provisions of the Code by filing prescribed application under the Code. The case is pending from the year 2017. 3. Brief facts of the case, as mentioned in the company petition, which are relevant to the issue in question, are as follows : (1) Shri Kartik Kalevar and 20 others, (hereinafter referred as the peti tioners) are all the employees of the respondent-company, who are work ing for the respondent-company. The petitioners have dedicated and worked efficiently and served the respondent-company under various desi gnations. (2) M/s. MetroCorp Infrastructure Ltd. (hereinafter referred as respondent) a registered partnership firm, incorporated under the Indian Partnership Act, 1932, was carrying on the business of execution of civil contracts of construction of v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008 7. Kabilan (V.) Petitioner No. 7 - 25-1-2006 1-5-2009 8. Late Somana (C. D.) represented by his wife Latha Somanna Petitioner No. 8 - - 1-4-2007 9. Mamatha (S.) Petitioner No. 9 - - 1-2-2010 10. Muktha Kadam Petitioner No. 10 3-1-2010 - 16-5-2011 11. Rahul R. Menon Petitioner No. 11 - 23-7-2007 1-5-2009 12. Ravi Kumar (N.) Petitioner No. 12 - - 13-9-2006 13. Sabitha Mandanna (P.) (Kaveramma M. U.) Petitioner No. 13 - - 14-6-2006 14. Shankar Dongre Petitioner No. 14 - - 6-7-2011 15. Siva Selladurai Petitioner No. 15 - - 1-2-2011 16. Smitha (C. P.) Petitioner No. 16 - - 24-7-2006 17. Subodh Kumar (B.) Petitioner No. 17 - 2-7-2007 1-7-2009 18. Tabasum Petitioner No. 18 2-7-2007 1-9-2008 1-5-2009 19. Tarini (K. M.) Petitioner No. 19 - 5-3-2008 1-4-2009 20. Varun Lath Petitioner No. 20 - - 7-11-2007 21. Vishwanath Rao (B. S.) Petitioner No. 21 - 12-9-2005 1-5-2009 (5) It is stated that the petitioners have worked in the respondents-company from the date of inception and few of them still continue to be o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me constitutes a debt due to the petitioner's by the respondent. Therefore, the respondent's-company be deemed to be com mercial insolvent and that thus it is just and proper that the same be ordered to be wound up by an order of this the hon'ble High Court in accordance with section 433 read with section 434 of the Companies Act, 1956. (8) It is submitted that forty employees have filed petition before the Regional Provident Fund Commissioner, Bengaluru seeking payment of Provident Fund. Regional Provident Fund Commissioner vide letter KN/ PF/SRO/YNK/COMP/2014-15/267, dated December 5, 2014 has informed that the company is a defaulter under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 and enquiry under section 7A of the Act is going on against the establishment for non-payment of PF and allied dues. Eight employees have fried petition under Payment of Gratuity Act, 1972 before the Controlling Authority, Labour Department, Government of Karnataka seeking for payment of gratuity and petitions recorded vide SAKAABen-2/PGA/CR146/14 to 153/14, dated November 26, 2014. Paper notification has already been issued on January 30, 2015 by the contro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 397/ 398 of the Companies Act, 1956 and they have filed two petitions vide C. C. No. 15955 of 2013 and Crl. Misc. No. 5753 of 2014 (under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Inter est Act, 2002) which are coming up before IVth Additional Metropolitan Magistrate, Bengaluru March 25, 2015. As per the Ministry of Company Affairs web site, no annual general body meeting has been conducted since September 30, 2010. Last balance-sheet has been audited and uploaded in the Registrar of Companies website only up to March 31, 2010. periodic returns have not been uploaded to the Registrar of Companies website. (11) It is stated that Pramerica Cyprus ASPF II Holding Ltd., who are majority shareholders has nominated two directors on the board, as such it is indirectly responsible for the irregularities/mismanagement. Pramerica has invested large amount in other projects in India and it may not be interested to continue in MetroCorp Infrastructure Ltd. due to lot of liti gations/liabilities. They may sell of their stake to a new investor against obtaining indemnity to transfer all their responsibility of clearing of liabi lities of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case there was no "debt" owned by the company to the petitioner ; no such debt could arise when the amount paid as and when it was due. The respondent's company made payments to the peti tioners as scheduled. Hence the question of winding up under section 433 read with section 434 of the Companies Act does not arise. (3) It is true that at some point of time, various litigations are pending against the respondent's-company. However, as on today, most of the cases mentioned in the list are disposed off either by way of settlement or on merits. The periodic returns could not be uploaded/filed with the Regis trar of Companies in view of the various frivolous litigations which are initiated by one of the investor Pramerica Cyprus, as such directly Pramerica Cyprus is responsible for all the misdemeanours. Though the project has come to stand still and due to which the project is in the interregnum, which run into rough weather and could not be implemented in its true terms, payments to its employees were made as and when it was due. (4) The allegations that the respondent's-company has enriched itself amounting to Rs. 1,78,25,555 as it failed to remit statut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ented in its true terms. (8) It is admittedly by the petitioner, the company stopped paying sal ary and other consequential benefits since 2010 and due, if any, would become payable, if made on or before June 2013 but the claims in relations to due raised in 2015 would be barred by limitation. Therefore, the claim of the Respondent in relation to any of claim made after three years from 2010 is barred by limitation and such claims are therefore stale claims which cannot be entertained by this Tribunal. (9) It is not true that petitioner having priorities over other rights. It is to be noted that the petitioners who were on rolls with the company was paid as and when it was due and some of the petitioners herein are not at all employees of the respondent's-company. 5. The petitioner has filed rejoinder to the objections, dated May 3, 2018, by, inter alia, contending as follows : (1) Petitioners Nos. 5, 7, 11, 18, 19 and 21 were transferred to Met roCorp Infrastructure Ltd. from MetroCorp (a partnership firm). Shri John son C, petitioner No. 6 was transferred from MetroCorp Knowledge City (Coimbatore) P. Ltd., to MetroCorp Infrastructure with effect from May 19, 2007. Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31, 2014. It is submitted that the husband of peti tioner No. 8 has not submitted his resignation and expired while on duty on June 8, 2014. He is being represented and expired while on duty on June 8, 2014. He is being represented by his wife Mrs. Latha Somanna, petitioner No. 8 in this company petition claiming the dues. (6) It is submitted that petitioner No. 1 joined MetroCorp Infrastruc ture Ltd. on July 1, 2009. Since his salary was not paid, he stopped attend ing to his work with effect from September 1, 2012. On August 31, 2012 he has submitted a letter to the respondent-company stating that the respondent-company has failed to pay his salary and will not be attending to his duties from September 1, 2012. Also, has informed that he would be submitting his resignation or will continue his services only after clearing of his salary dues. As he has not submitted his resignation he remains on the rolls of the company. (7) It is submitted that the respondent-company is liable to pay a sum of Rs. 48,64,381 towards statutory dues like PF (both compulsory and voluntary contributions), ESI, professional tax, labour welfare fund and TDS excluding gratuity. The respondent-company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Rs. 2.50 lakhs to Rs. 1.75 lakhs with effect from February 1, 2010 due to austerity measures. (11) They have relied upon the judgment passed by the hon'ble Supreme Court in Appeal (Civil) Nos. 14772-14773 of 2010 between Maharashtra State Co-op. Bank v. Kannada Sahakari Sakhar Karnataka Ltd. wherein the hon'ble apex court has upheld dues assessed under sec tion 7A but interest under section 7Q and damages under section 14B and dues to be treated as "priority dues" under section 11 of the EPF and MP Act, 1952. Employees Provident Fund Organisation (EPFO), Head Office, New Delhi vide letter LC/2(717)/2011/MH/9748, dated August 27, 2013 has advised all field functionaries to take necessary action in this regard. On the said ground, the respondent-company has to remit a sum of Rs. 5,42,234 towards interest on delayed remittance of PF. The interest on gratuity at 10 per cent. up to April 30, 2018 as per section 7(3) and (3A) of the Gratuity Act, 1972 comes to Rs. 4,46,468. A reference is drawn to the judgment passed by the hon'ble Supreme Court in Appeal (Civil) No. 1024 of 2003 between H. Gangahanume Gowda v. Karnataka Agro Industries Corporation Ltd., wherein the hon&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uance to transfer of case to the Tribunal, they have complied with all the provisions of the Code by seeking to initiate corporate insolvency resolution process, under section 9 of the IBC, 2016, the instant company petition is filed in accordance with law and, there is an admitted debt and default of the corporate debtor and the same is not in dispute, and the company is commercially insolvent to pay its liabilities to the petitioner as well as to the other parties, and a qualified resolution professional namely, Mrs. Ramanathan Bhuvaneshwari, bearing Registration No. IBBI/IPA-002/IPN00306/2017-2018/10864 is proposed to appoint her as interim resolution professional, who has filed written communication in Form 2, dated June 17, 2019, in a prescribed forum by inter alia declaring that she is qualified to be appointed as such, not undergoing any disciplinary case, etc., and thus she is eligible to be appointed as IRP. Therefore, learned counsel urged the Tribunal to admit the instant company petition by initiating the corporate insolvency resolution process as prayed for. 8. Learned counsel for the respondent, while pointing out various averments made in the statement of objections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... panies Act of 1956, by, inter alia, seeking to declare the meetings of the board of directors of respondent No. 1-company as purportedly held on November 2, 2009, November 10, 2009, October 25, 2010 as illegal, null and void with consequential relief ; to declare the mortgage deeds dated November 10, 2009, November 19, 2009, November 2, 2010 signed pursuant to the aforesaid meetings and ostensible resolutions passed therein, by respondent No. 2 on behalf of respondent No. 1-company as illegal null and void and order cancellation of the said deeds of mortgage, etc. The petitioner have alleged the various acts of oppressions and mismanagements in the company petition and both the company petitions were dismissed by this Tribunal by a separate common order dated July 26, 2019. 12. Admittedly, the petitioners have approached various authorities to seek recovery of salary, gratuities, etc. They have also obtained some orders from those authorities. Therefore, it is not in dispute that the petitioner approaches this Adjudicating Authority in order to recover the alleged outstanding amount arises out of non-payment salary, gratuity, reimbursement of office imprest, reimbursement of fuel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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