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TMI Blog2020 (6) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... is not payable in law and is also disputed. This Adjudicating Authority observes that there is evidence on record in the form of the e-mail correspondence which indicates that there was pre-existence of dispute between the Applicant and Respondent in respect of the claims made by the Applicants - Since there exists a real dispute between the Applicant and Respondents in respect of claims, we are not inclined to admit this Application, and the same is hereby rejected. Application dismissed. - CP (IB) No.616/9/HDB/2019 - - - Dated:- 18-5-2020 - Shri.K.Anantha Padmanabha Swamy, Member Judicial And Dr.Binod Kumar Sinha, Member Technical For the Petitioner: Mr. Damodar Muddukrishna [Party-in person] For the Respondent: Mr. S.Ram Babu, Counsel. ORDER Per: Dr.Binod Kumar Sinha, Member Technical 1. Under consideration is a Company Application filed by Mr. Damodar Muddukrishna (in short, 'Petitioner/ Operational Creditor') against M/s. Cygilant (India) Research Development Private Limited (in short, 'Respondent/ Corporate Debtor') under section 9 of the Insolvency and Bankruptcy Code 2016 (in short, I B Code 2016) Read with Rule 6 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of Operational Debt and amount in default. These are as listed below: List of the Documents:- Email Communication - Form 3, Form 4 Invoice 31-08-2019 Email Attachment - Form 3 31-08-2019 Email Attachment - Form 4 31-08-2019 Email Attachment - Invoice 31-08-2019 Demand Notice/ Invoice of Demanding Payment Under The Insolvency and Bankruptcy Code 2016 by Speed post/ Email 04-09-2019 Speed Post Details 04-09-2019 Email Attachment - Form 3 04-09-2019 Email Attachment - Form 4 04-09-2019 Email Attachment - Invoice 31-08-2019 APPOINTMENT LETTERS Employment Offer Letter from elQnetworks Ltd 01-04-2001 Employment Offer Letter from elQnetworks (India) Research and Development Private Limited 15-12-2018 Employment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm 3 31-08-2019 Email Attachment - Form 4 31-08-2019 Email Attachment - Invoice 31-08-2019 Demand Notice/ Invoice of Demanding Payment Under The Insolvency and Bankruptcy Code, 2016 04-09-2019 Email Attachment -Form 3 04-09-2019 Email Attachment - Form 4 04-09-2019 Email Attachment - Invoice 31-08-2019 The Petitioner also furnished additional material papers in order to support his claim which are as under:- Annexure-A Employees' Provident Fund Member Passbook of 'EiQ Networks' 20-06-2019 Annexure-B Employees' Provident Fund Member Passbook of 'Cygilant' 20-06-2019 Annexure-c Email from Christina Lattuca Subject: Please Welcome Deb Kearney, SHRM-SCP 04-06-2019 Annexure-D Email from Gopi Krishna Subject: RE: Team outi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... culated as per the terms of employment of the Applicant with EiQnetworks India and the Company, as well as the relevant applicable laws. The Applicant was entitled to the following amounts- i) One month's notice pay - INR 3,39,799/- ii) Salary till 13 June 2019 - INR 1,41,147/- iii) Gratuity (from 15 December 2008 to 13 June 2019) - INR 16,44,188/- iv) Leave encashment - INR 1,25,464/- Total Amount - INR 22,50,599/- d) Pursuant to the issuance of the Termination Letter, the above mentioned total amount (INR 22,50,599/-) was duly paid to the Applicant in compliance with the terms of employment as well as applicable laws. e) However, immediately after the issuance of the Termination Letter, the Applicant started raising completely false, frivolous and arbitrary claims (over and above the above mentioned termination benefits) against the Company. The Company duly replied to each and every communication received from the Applicant thereby, not only disputing the completely false and frivolous claims being raised by the Applicant but also duly informing the Applicant that no amounts (apart from the amounts mentioned in the Termination Letter) are due and payable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alsified. It was further clarified by the Company that EiQ networks India was incorporated in December 2008 and therefore, there was no question of payment of gratuity to him from 2001. In relation to ESOPs, the Applicant was informed that as per Company's policy, a stock termination letter would be issued to the Applicant and he may exercise his rights in terms thereof. It is pertinent to mention herein that the Applicant was duly issued a stock termination letter dated 25 June 2019, however, the Applicant has chosen not to exercise his rights in accordance with the terms thereof. iii) The Applicant responded to the above mentioned email dated 25 June 2019 on 26 June 2019 thereby again stating that his employment commenced from 1 April 2001 and also attached an appointment letter of another company by the name of EiQnetworks Limited On 27 June 2019, the Company issued a detailed response to the Applicant, wherein it was clearly stated by the Company that the appointment letter attached by the Applicant in his email dated 26 June 2019 was from a different company which is not affiliated with the respondent Company. The Company as well as EiQ networks India are private limite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the Company. Thereafter, several emails were exchanged between the counsels of the parties on their behalf, however, the Applicant malafidely refused to return the assets of the Company despite having been terminated from employment. The Company thereafter, issued a detailed response dated 12 September 2019 to the notice dated 12 August 2019. In the aforesaid letter, inter alia, the Company not only disputed each and every arbitrary and illegal claim being raised by the Applicant therein, but the Company yet again called upon the Applicant to return the Assets of the Company. However, till date the Applicant continues to be in illegal possession of the aforesaid Assets and has refused to return the same to the Company. vi) In the meanwhile, even before the Company could respond to the aforesaid response to the notice dated 12 August 2019, the Applicant issued a demand notice dated 31 August 2019 under section 8 of the Code (Demand Notice) to the Company and thereafter, the same notice was issued to the Company through the counsel of the Applicant. However, the above mentioned second demand notice was dated 4 September 2019. The Applicant had also attached a completely il ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not maintainable under the provisions of Section 8 and Section 9 of the Code. j) That the claims of the Applicant regarding gratuity and compensation are against the objectives of the Code, as he has attempted to use the Code as a tool for recovery, rather than resolution of the Corporate Debtor and the application is ought to be rejected on this ground. 10. Heard, both the sides and perused the record as well as written submissions, 11. This is an Application filed U/s.9 of the Code. According to the provisions of Sec.8 and 9, for initiation of resolution process U/s.9, the Applicant must send a demand notice, to which the Corporate Debtor should reply within 10 days brining to the attention of the Applicant either (a) existence of a dispute or record of pendency of suit or arbitration proceedings filed before receipt of such notice or (b) the payment of unpaid operational debt by placing evidence of payment. 12. In the instant case, notices U/s.8 were served on 31.08.2019/04.09.19, which was replied to by the Corporate Debtor herein on 12.09.2019. In the reply, it has been contended that all terminal benefits as per terms of employment of the Applicant herein had alr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including but not limited to EiQnetworks Limited. It is reiterated here that prior to December 2008, your Client was employed with another company, i.e. EiQnetworks Limited which is not a subsidiary of and has no affiliation with Cygilant and/or Cygilant Inc. and/or any of its group companies. Thus, Cygilant cannot be held liable for any dues prior to your Client's employment with EiQnetworks India, i.e. any dues prior to 15 December 2008. It is specifically denied that your Client has not yet resigned nor accepted the Termination Letter by Cygilant. It is reiterated here that service of your Client were terminated by Cygilant with effect from 13 June 2019. This contention of your Client is wholly misplaced and contradictory to his own claims for termination benefits when he is on the contrary, claiming to still be an employee of Cygilant. It is reiterated that your Client's services have been terminated in accordance with the terms of your Client's employment and provisions of law and nothing more remains due to your Client apart from the amount already communicated to your Client vide the Termination Letter. . 16. The contents of par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith his Petition multiple e-mail correspondence exchanged during the month of June 2019 (Pages 179 to 186) between him and the Respondents which indicate that the claims made herein have been strongly disputed by the Corporate Debtor even before receipt of demand notice U/s.8. 14. On consideration of the above said correspondence, this Adjudicating Authority observes that there is evidence on record in the form of the e-mail correspondence which indicates that there was pre-existence of dispute between the Applicant and Respondent in respect of the claims made by the Applicants. 15. Hon'ble Supreme Court in the case of Transmission Corporation of Andhra Pradesh Limited vs Equipment Conductors and Cables Limited (2018) Civil Appeal No.9597 of 2018 held as follows: 15. In a recent judgement of this Court in Mobilox Innovations Private Limited vs. Kirusa Software Private Limited (2018) 1 SCC 353, this Court has categorically laid down that IBC is not intended to be substitute to a recovery forum. It is also laid down that whenever there is existence of real dispute, the IBC provisions cannot be invoked. 16. Since there exists a real dispute between the Applicant an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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