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TMI Blog2020 (3) TMI 1262X X X X Extracts X X X X X X X X Extracts X X X X ..... emand notice issued under Section (81) is a dispute in terms of Section 8(2)(a) or not? The objection was raised by Corporate Debtor on the invoice/bill submitted by the applicant prior to the date of issuance of the demand notice. We further find since on 6th June 2019. show cause notice under Section 6 of the Payment of Wages (amended) Act. 2017 was sent in which the correspondence made through the various email. Further, vide email dated 6th June. 2019, the Corporate Debtor has also informed the Operational Creditor that due to non-payment of salary, the staffs deputed by the Operational Creditor refused to join their service on 6th June, 2019 and they have gathered in front of the hospital near gate No. 1. Whether this dispute has been raised within the period prescribed under Section 8(2) of the IBC, 2016 or not? - HELD THAT:- Before receiving the demand notice, the Corporate Debtor has raised the disputes and the email exchanged between the two, which are prior to the issuance of the demand notice shows that there was a dispute regarding the amount claimed by the Operational Creditor and it has also come that the proper staff were not being deputed/posted by the Operational C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Operational Creditor for the hospitality services to be provided at their Qutab Institutional Area Unit. Therefore, the Operational Creditor started providing services to the Corporate Debtor at Qutab unit via Agreement dated 12.10.2016. 5. In pursuant of the Order dated 12th October. 2016. the Operational Creditor after providing service to the Corporate Debtor raised the invoices on the various dates, which are mentioned at page 13 of the paper book. 6. After raising the invoices, the Operational Creditor has received ₹ 18,00,959/- against the invoices referred at page 12 which relates to Phase-1, Dwarka, New Delhi and ₹ 4,86,197/- against the invoices raised at page 13 of the paper book in respect of service provided at Qutab Unit and claimed that total of ₹ 1,35,54,011/- is outstanding due and since the said amount is not paid, therefore, there is a default in payment of the aforesaid amount. Further, the debt become due after 30 days from the date of issuance of invoice. 7. Invoices for Dwarka Unit at page 12 are quoted below: - Invoice No. Date Invoice Value Payment Due as on 10.06.2019 118/18-19 01.10.2018 14,42,446.00 3,42,446.00 138/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt consequently determine the amount of the monthly bills due to the service provider/applicant in consonance with the wages etc. paid by it to the staff deployed at the respondent's hospital. 13. Further as per the agreement, invoices were not liable to be cleared by the respondent until all documents showing payments made in compliance with Labour Laws were furnished to the respondent. The applicant fails to provide the requisite documents although the respondent through various emails had requested the applicant to furnish the said documents. 14. Further, when after the repeated request the applicant fails to furnish the said documents then respondent was left with no option but to deduct amount on the invoices raised due to the non-compliance of Statutory provisions by the applicant and also issued notices towards the termination of the service of the applicant company but this fact has been concealed by the applicant before this Adjudicating Authority. 15. Further, it is the settled principle of Law that if a notice of pre-existing dispute between the parties has been received by the Operational Creditor or there is record of disputes in the information utility the inso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Debtor release amount of ₹ 4.86,197/- directly to the employees under the direction of the Labour Commissioner. 20. The Operational Creditor also annexed the emails exchanged between the two and admits that in pursuant of the Labour Court Commissioner's Order, the payment was made by the Corporate Debtor. 21. We have heard the learned Counsel for the Petitioner as well as the respondent, perused the averments made in the application, reply and rejoinder filed by the respective parties and the documents annexed with the application, reply and rejoinder. 22. Learned Counsel appeared for the applicant, in course of arguments submitted that as per the agreement and legal position, the Corporate Debtor is the principal employer and the Operational Creditor is the labour contractor, who provides employees for the principal employer. 23. He further, submitted that in view of the decisions of the Supreme Court reported in (1996) 10 SCC 599 in the case of Hindustan Steel works Construction Limited Vs. Commissioner of Labour and Others (1996) 10 SCC 599 "if the contractor does not pay wages to his workmen engaged by him as a contract labourers then under Section 21(4), the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent vide email dated 07th March. 2019 at page 36 of the reply to abstain from making such cash payment as the same is prohibited under Section 6 of the Payment of Wages Act. 30. He further, submitted that there had been serious deficiency of the service on the part of the applicant company. Due to the non-payment of salary, the employees repeatedly went on strike, refused to work and the quality of service provided by them deteriorated considerably and the Respondent vide email dated 06th March, 2019, (annexure 3 page 34) communicated the applicant company that company has not been paying their employees salary in compliance with the Minimum Wages Act, as a result of which, the staffs have refused to join their service and gathered in protest outside the respondent's hospital at Dwarka and the displeasure was also communicated to the applicant company vide email dated 15th April. 2019. 21st November. 2018. 2nd November, 2018, 31st October, 2018 and 21st October, 2018 (Annexure 2 Page 27). 31. He further submitted that when the applicant failed to disburse the salary to its employees, the respondent disbursed ₹ 18,00,959/- towards the salary of the employees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... email dated 27th April. 2019 that has been communicated to the Operational Creditor that there is deficiency in the bill of the January 2019. February 2019 and March 2019, vide email date June. 2019. the deficiency in the bill of month of March 2019 was also communicated and vide email date March 2018, the deficiency in the bills of month of September 2018, October 2018, November 2018 and December 2018 was communicated. 37. On the basis of aforesaid facts, we find that before the delivery of the demand notice, the Corporate Debtor has raised the admissibility of the amount mentioned in the bill which was submitted by the Operational Creditor before the Corporate Debtor in the month of September 2018. October 2018. November 2018, December 2018. January 2019. February 2019 and March 2019 and the Operational Creditor has claimed the amount due for the aforesaid months, which would be reflected from the averments made at page 12 of the application filed by the Applicant. 38. At this juncture, we would also like to mention this fact that the Corporate Debtor, at page 12. admits that he has received ₹ 18,00,959/- towards the salary paid to the employees directly under the protest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... October 2018, November 2018, December 2018, January 2019, February 2019 and March 2019. 42. Now. question is whether this dispute has been raised within the period prescribed under Section 8(2) of the IBC, 2016 or not. In view of Section 8(2) of IBC, 2016, the Corporate Debtor within a period of 10 days of the receipt of a demand notice either raised the existence of the dispute or made the payment of the unpaid Operational Debt. 43. At this juncture, we would like to refer the demand notice issued by the Operational Creditor which is at page 24 of the demand notice which shows that it was issued on 17th May. 2019 but the applicant nowhere in the application enclosed the documents to show when the demand notice was delivered upon the respondent. In our opinion, the onus is upon the Operational Creditor to prove when the demand notice was delivered. Since, the Operational Creditor fails to convince us the date when was delivered, we have no option but to hold that the respondent has sent the reply within the prescribed period provided under Section 8(2) of the IBC. 2016. 44. At this juncture, we would also like to refer the rejoinder to the reply filed by the Operational Credito ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rather, we are of the considered view that in view of the discussions made above, it can be safely said that the Corporate Debtor has raised the dispute, which is corroborated by the email exchanged between the two. prior to the delivery of the demand notice. 48. At this juncture, we would like to refer the decision of Hon'ble Supreme Court in "Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P) Limited- 2017 1 SCC OnLine SC 353". in which the Apex Court analysed the meaning of dispute with respect to Operational Creditors and observed: "24. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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