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TMI Blog2019 (12) TMI 1407X X X X Extracts X X X X X X X X Extracts X X X X ..... ional Creditor ) for the purpose of initiating the Corporate Insolvency Resolution Process (CIRP) against M/s. Pentafour Products Limited (hereinafter called as Corporate Debtor ). 2. Part - I, of the Application discloses the fact that the Petition has been filed by 20 individuals claiming to be retired employees of the Corporate Debtor. Part-II of the Application gives all the particulars of the Corporate Debtor from which it is evident that the Corporate Debtor is a Limited Company with CIN:U33111TN1984PLC010909 which was incorporated on 05.08.1984 and that its Authorised Capital and Paid up Capital is ₹ 42.32 Crores and ₹ 41.32 Crores respectively. The Registered Office of the Corporate Debtor as per the Application is stated to be situated at 39-B, 5th Cross Street, Trustpuram, Kodambakkam, Chennai - 600 024. 3. Part - III of the Applicant discloses the fact that the Operational Creditor had not given the name of the IRP and left it to the discretion of this Tribunal. From Part-IV of the Application, it is seen that a sum of ₹ 30,53,241/- along with compound interest @ 15% p.a. calculated till 30.09.2018, totalling a sum of ₹ 67,68,368/- is being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thereafter, the Industrial Tribunal vide its award dated 21.02.2006 held that the suspension of operation was illegal and void and further issued directions for reinstatement and payment of wages and consequent thereto, certain claims were initiated by the workers union claiming for wages. e. Subsequently on 19.04.2006, a settlement under Section 12(3) of Industrial Dispute Act, 1947 was entered into between the Trade Union and the Management before the Deputy Commissioner of Labour, in respect of 248 workmen of the Corporate Debtor. It is pertinent to note that the entire set of 20 Petitioner's in the present petition are also forming part of the said Memorandum of Settlement. f. The terms of Memorandum of Settlement inter alia was that all the claims and proceedings initiated before the Labour Forums / Courts have to be withdrawn and not to press for the award passed in ID No. 32 of 2003 and it was further agreed that the amounts mentioned in the Memorandum of Settlement is in full and final settlement and all the workmen are deemed to have resigned from the job as of 31.07.2001. It was further agreed that upon signing of settlement, except for the amounts due and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 days of the receipt of the order. I. Based on the order passed by the Assistant Commissioner of Labour vide order dated 16.03.2015, the workers approached the District Collector Chennai, seeking for gratuity and the District Collector vide order dated 16.07.2016 directed the Corporate Debtor to distribute the gratuity amount along with interest at 10% p.a. within a period of 30 days and further compound interest at 15% p.a. under the Revenue Recovery Act and vide the said order, the Tahsildar, Egmore was empowered to collect the said amount and the Tahsildar had issued a notice dated 27.07.2016 seeking to recover a sum of ₹ 70,63,014/- from the Corporate Debtor. m. Challenging the order of the Tahsildar, Egmore, the Corporate Debtor has filed the W.P. No. 9014/2017 and the said writ petition is pending with a conditional interim order of stay to pay 25% of the gratuity amount to the impleaded employees (who are not the petitioners). Thus, the Operational Creditors have filed the present petition claiming for a sum of ₹ 67,68,368/- being the sum payable by the Corporate Debtor in lieu of the gratuity claims as passed by the Assistant Commissioner of Labou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their gratuity cannot be a ground to resist the claim of the petitioners in as much the statutory authority viz. Assistant Commissioner of Labour has declared that the Corporate Debtor must pay the gratuity to the Operational Creditors. 11. As to the submission made by the Ld. Counsel for the Operational Creditor, the Ld. Counsel for the Corporate Debtor submitted that the petitioners themselves have admitted that whether a settlement under Section 12(3) of the Industrial Dispute Act is binding on all the petitioners is the subject matter of the Writ Appeal before the Hon'ble Madras High Court in W.A. No. 2115/2012 and on this count, it is evident that there exists a 'dispute' between the parties. The Ld. Counsel for the Corporate Debtor further contended that the majority of the applicants in the present petitions are the Appellants in the said Writ Appeal and the same is still pending before the Hon'ble Madras High Court and also placed on record a table showing the name of the employee vis-a-vis the rank of the Appellant in the Writ Appeal and the same is reproduced hereunder; S. No. as in the Petitioner's Volume Nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exists a dispute. 13. The Hon'ble Supreme Court in Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P) Limited; 2017 1 SCC Online SC 353 held that the 'existence of dispute' and/or the suit or arbitration proceeding must be pre-existing i.e. it must exist before the receipt of the Demand Notice or Invoice as the case may be and observed as follows; 33. The scheme under Sections 8 and 9 of the Code, appears to be that an operational creditor, as defined, may, on the occurrence of a default (i.e. on non-payment of a debt, any part whereof has become due and payable and has not been repaid), deliver a demand notice of such unpaid operational debt or deliver the copy of an invoice demanding payment of such amount to the corporate debtor in the form set out in Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Form 3 or 4, as the case may be [Section 8(1)]. Within a period of 10 days of the receipt of such demand notice or copy of invoice, the corporate debtor must bring to the notice of the operational creditor the existence of a dispute and/or the record of the pendency of a suit or arbitration proceeding filed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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