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TMI Blog2020 (10) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... he demand notice under Section 8(1) cannot be taken into consideration to hold that there is a pre-existing dispute. In the present case, there is no such dispute as pre-existing, the dispute which was being claimed to be pre-existing by the the corporate debtor did not survive - The applicant has filed an affidavit under Section 9(3)(b) stating that no notice of dispute from Corporate Debtor is received - The registered office of respondent is situated in New Delhi and therefore this Tribunal has jurisdiction to entertain and try this application. Time Limitation - HELD THAT:- On perusal of the record it is clear that the last payment was made by the Corporate Debtor on 17.11.2018. Hence, the claim is not time barred. And the present application is well within the limitation period. Thus, the present application is complete and the Applicant is entitled to claim its dues, establishing the default in payment of the operational debt beyond doubt, and fulfillment of requirements under section 9(5) of the Code. Application admitted - moratorium declared. - Dr. Deepti Mukesh, Member (J) And Hemant Kumar Sarangi, Member (T) For the Appellant/Respondent: Shweta Bharti, Sukrit R. Kapoor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porate Debtor was availing the services of the Operational Creditor, whereby, the Corporate Debtor was being provided with resource personnel for its staffing requirements. Crucially, however, resource personnel as provided to the Corporate Debtor by the Operational Creditor were not the employees of the Corporate Debtor as the remuneration and other statutory payments were throughout made to the resource personnel by the Operational Creditor. It is relevant to note that, the clause 5.2 of the Principal Agreement was amended vide Amendment to the Principal Agreement dated 05.09.2017, executed between Operational Creditor and Corporate Debtor, whereupon the clause 5.2 read as: Adecco India shall raise provisional invoice for 60% of the estimated value (excluding service charge) for the current month's salary outgo and submit the same latest by 25th of the current month. The payment for the same shall be released by the client on or before the last date of the month. Adecco India shall submit final invoice for the month latest by 20th of the following month. The client shall release the balance amount on or before the end of the following month after adjusting the 60% advance giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e email dated 29.10.2018, it was again conveyed by the Operational Creditor to the Corporate Debtor that the invoices had remained unpaid and despite assurances received from the Corporate Debtor, the same had remained outstanding. That vide email dated 29.10.2018 addressed to the Corporate Debtor was again called upon to intimate the Operational Creditor as to by when the Operational Creditor could expect the payment of the dues from the Corporate Debtor. 11. The Applicant states that, after various reminders in relation to the unpaid invoices, the Corporate Debtor, on 17.11.2018 made a part payment of ₹ 1,00,00,000/- (Rupees One Crore), in respect of the net outstanding invoices raised by the Operational Creditor; which effectively confirms the undisputed nature of the Operational Debt owed by the Corporate Debtor to the Operational Creditor. However, the same was not a full and final payment of all the payment obligations of the Corporate Debtor and huge sums of money as detailed herein below which still remained due and payable by the Corporate Debtor. 12. On failure to pay the outstanding dues by the Respondent, the applicant sent a demand notice dated 11.12.2018 under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... labour/ manpower ( Contractual Employees ), for its day to day functioning and its business requirements. Thereafter, on 05.09.2017, the SPA was amended. The obligation to comply with labour laws and to ensure timely payment of statutory dues and other obligations was entirely and exclusively the case on Adecco under Clause 4.411, Clause 5.312 and Clause 2013 of General Conditions of the SPA. 19. The SPA was due to expire on 30.06.2018 and in order to ensure that no loss of employment is caused to the Contractual Employees, BRPL agreed to transfer the personnel currently in employment of Adecco assigned to its institutions to the new service provider. As a part of the process of such transfer, in accordance with the clauses of the SPA, Adecco was obliged to ensure that the accumulated Employees Provident Fund (EPF) with its Trust is handed over to the new Service Provider and the relevant documents qua RPFC, EPF and EPS facilities are provided. 20. On 02.05.2018, BRPL sought an update on the issue and advised Adecco to take appropriate actions failing which BRPL would have to take necessary actions against Adecco. It is evident that Adecco defaulted in its obligations under the SPA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. Further BRPL has deducted TDS from the bills and the same has been deposited with the relevant authorities. However, in a clandestine manner, Adecco raised an Invoice dated 30.03.2018 for certain alleged unpaid amounts of TDS for FY 2012-13 i.e. after a delay of 5 years. (b) There is no 'default' on account of BRPL and BRPL has duly deposited the amount of TDS with the authorities. In support of the same BRPL has also provided the TDS certificates for the relevant FY. (c) The Invoice dated 30.03.2018 was duly disputed by BRPL before the issuance of the Demand Notice and Adecco by email dated 04.09.2018, has agreed that the said amount has to be reconciled by providing the details for the TDS deposited for the relevant years. (d) BRPL has time and again provided all relevant details to Adecco for the same and it is for Adecco to verify for which Invoices the TDS deposited has not been accounted for by Adecco in their books of accounts. There is no outstanding TDS to be deposited by BRPL and Adecco has to reconcile its financials. (e) During the pendency of the proceedings the parties have been able to reconcile an amount of ₹ 6 lacs of the said TDS amount and the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st time by speed post on 31.12.2018, however, the same was never delivered to BRPL and was returned Notice, Petition of Rejoinder and was filed at a belated stage with the Application for Additional documents sometime in July 2019. (g) It is noteworthy that: (i) In a clandestine manner, Adecco filed an Application for Additional documents bearing CA No. 223 of 2019 placing on record documents and pleadings for the TDS amount and the Bonus amounts. (ii) The same cannot be taken into consideration as there is no enabling provision under the Code or the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 enabling Petitioner to file additional documents after the completion of the pleadings. (iii) It stands to reason that a Petition under the Code has to be adjudicated on the basis of the facts in the Petition and Demand Notice and the documents annexed thereto provided along with Petition and Demand Notice. Respondent has based its defence on the basis of the Documents and averments in the Demand Notice and the Petition. Valuable rights accrued to the Respondent to seek dismissal of Petition on account of deficiency in Demand Notice and Petition. The same can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is demonstrated that the Respondent has no role to mediate on behalf of the members of the Trust particularly with regard to the transfer. 31. Further going by the SPA, at no point in time under no circumstances whatsoever has the Respondent herein, being the client, ever raised any dispute with respect to any deficiency in the discharge of services as specified under the scope of services of the SPA, neither prior to and nor post the issuance of the Demand Notice dated 11.12.2018 by the Applicant to the Respondent, herein. Further, with respect to the contention of the Respondent as being the 'Principal Employer' of the resources so provided to the Respondent by the Applicant, the attention of this Tribunal is invited to the following clauses of the SPA: 21. [...] Resources shall be on regular rolls of Adecco India. Resource shall also be rotated by Adecco India preferably every quarter on performance basis. The overall performance of Mis Adecco India will be assesses during the tenure of the agreement, as per Assessment parameters for agencies as explained in Annexure-III which is a part of this agreement. On the basis of this assessment. Adecco India will be given re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on-payment of wages/ salary to Contractual Employees, the amount payable to them will be recovered from the Petitioner's bill. That the contention of the Respondent of being vested with the ultimate liability towards the resources, it is stated that the Respondent herein is not exposed to any liability towards the same. 35. The arrangement as established by virtue of the Clause 5.3 seeks to ensure that only if in the case the Respondent is required to make payments to the resources towards their wages/salaries, the same shall be recoverable from the Applicant herein. Further, the misconceived dispute as alleged by the Respondent falsely contends that the Applicant herein has failed to clear the exit formalities and provide the relevant documents qua transfer of RPFC, ECF and EPS facilities to the employees who terminated their employment with the Applicant. 36. The Applicant in this respect states that, the above mentioned Trust is a body regulated by the Employee's Provident Funds and Miscellaneous Provisions Act, 1952 and as such any dispute of a member regarding any grievance against the processing of the Employee's Provident Fund claims by the Trust are to be raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt with respect to the Right of Payment of the Application. 39. That with respect to the amount of ₹ 18,07,625/- (Rupees Eighteen Lakhs Seven Thousand Six Hundred Twenty Five), the Respondent has contended that no invoice was ever raised towards the said amount and that the same is for Bonus/Ex-gratia payments. The said payments had been made by the Applicant upon having received specific instructions and confirmation from the Respondent herein vide email dated 26.10.2018, wherein the Respondent has specifically admitted to receiving the invoice to that effect as submitted by the Applicant to the Respondent. 40. It is pertinent to note that the applicant has placed on record all the invoices, stating that the respondent itself had acknowledged the said invoices. Once the debt is shown as due, it is for the respondent to prove that there are no outstanding dues to be paid to the applicant. There has been much cloud in the submission of the respondent. Therefore, without any specific details of material particulars or evidence the fact of existence of a dispute cannot be sustained. 41. In Innoventive Industries Ltd. (Supra) , the Hon'ble Supreme Court held that pre-existing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in terms of Sections 15, 17, 18, 20 and 21 of the Code. 48. As a consequence of the application being admitted in terms of Section 9(5) of IBC, 2016 moratorium as envisaged under the provisions of Section 14(1) shall follow in relation to the Respondent, prohibiting the respondent as per proviso (a) to (d) of section 14(1) of the Code. However, during the pendency of the moratorium period, terms of Section 14(2) to 14(3) of the Code shall come into force. 49. We direct the Operational Creditor to deposit a sum of ₹ 2 lacs with the Interim Resolution Professional Mr. Manoj Kumar Anand to meet out the expenses to perform the functions assigned to him in accordance with Regulation 6 of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) Regulations, 2016. The needful shall be done within three days from the date of receipt of this order by the Operational Creditor. The amount however be subject to adjustment by the Committee of Creditors as accounted for by Interim Resolution Professional and shall be paid back to the Operational Creditor. 50. The registry is directed to communicate a copy of the order to the Operational Creditor, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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