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TMI Blog2020 (5) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 [hereinafter referred to as "the Rules"]. 2. The applicant/operational creditor is an individual was an employee of the corporate debtor residing at the address given in the cause title. 3. The respondent corporate debtor is a limited company-, registered on 5-5-1992 having registration No. L24100GJ1992PLC017574 having its registered office at Vadodara, Gujarat State. Authorised share capital of the respondent company is Rs. 8,00,00,000/- and paid up share capital is Rs. 7,88,94,500/-. 4. The applicant/Petitioner has submitted that he was appointed as Resident Construction Manager (RCM) by the respondent company at Mumbai. That, the corporate debtor had issued an offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operational creditor had to face financial crisis and, therefore, he left the job on 23-5-2017. 6. The operational creditor has further submitted that he is entitled for the fixed salary from January 2017 to 23rd May, 2017 @ Rs. 70,000/- per month and variable salary from the month March, 2016 to 23rd May, 2017 @ Rs. 40,000/-per month. That, as per the detailed computation given by the operational creditor (page 6) total outstanding dues are Rs. 9,24,333/- (Rupees nine lacs twenty-four thousand three hundred and thirty-three only). 7. The operational creditor has further stated that having failed to receive the operational debt from the corporate debtor, he was compelled to issue demand notice (page 22-26) on 1-9-2018 calling upon the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anuary 2017 to 23-5-2017 for fixed salary of Rs. 3,33,667/- is unlawful and not eligible. 11. The Corporate debtor has further stated that according to employment terms and conditions "time schedule to complete the entire site and progress mile stone fixed by ONGC need to be achieved, monitored and reported weekly, monthly to Management of Corporate debtor company is not adhered by the applicant and on account of such lapses ONGC was about to terminate the contract of corporate debtor. That, the progress made till 23-4-2017 was only 0.59% as against desired target given of 32% by ONGC. That, since there is very poor performance and progress at the site, claim of the applicant for variable salary of Rs. 40,000/- per month cannot be justifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services to the corporate debtor as envisaged in the offer letter. That apart, claim of the applicant is not crystalized so as to establish the date of default and amount due and payable, which is one of the main ingredients to initiate Insolvency Proceedings. Thus, before admitting the application, this Adjudicating Authority is to see that, at this stage, as to whether there is a plausible contention which requires further investigation. The operational creditor has totally failed to establish that amount is due and payable and not yet been paid. 16. In Mobilox Innovations (P.) Ltd. v. Kirusa Software (P.) Ltd. [2017] 85 taxmann.com 292/144 SCL 37 (SC), the Hon'ble Supreme Court categorically laid down that IBC is not intended to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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