9911796707
TMI Blog2020 (3) TMI 1292X X X X Extracts X X X X X X X X Extracts X X X X ..... e, was that the Operational Creditor is a person with limited means. The Application under section 9 of IBC based on Notice under section 8 dated 12th November, 2018 was thus instituted. There is more than sufficient record that there were pre-existing disputes regarding handing over of the charge and the entitlements before the Notice dated 12-11-2018 was sent. The learned Counsel for the Appellant has pointed out Leave Policy (Page - 68 of the Appeal) to say that the employee is not allowed to use balance unutilised leave while serving the Notice period. Disputes were raised even regarding performance incentive. The Appellant himself in the Notice (Annexure A-10) dated 12th November, 2018 stated that the Annual Performance Incentive was due on 10th May, 2017. He having resigned by Notice dated 11th March, 2017 and admittedly stopped attending after 15th April, 2017, has claimed ₹ 6 Lakhs against this head, without showing that the performance was found to be up to the mark. These are service disputes and we cannot enter into settling these disputes. The record shows that there were pre-existing disputes between the parties when Notice (Annexure A-10) was sent and Appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Incentive due on 10-5-2017 6,00,000/- Liquidated Damages, 3 months basic pay @ 1,00,000/- or part thereof. (Part= Ratio of 14 days short served to 60 days notice period (25 days short served less 11 days PL) 70,000/- Total amount in default 9,05,000/- 3. The Operational Creditor claimed that he had sent various reminders and then a Notice under section 8 was sent on 12th November, 2018 (Annexure A-10 - Page 59). It was claimed that the Corporate Debtor sent Reply dated 23rd November, 2018 (Annexure A-11 - Page 63). The Operational Creditor claimed that the Reply was invalid. It was claimed that the Corporate Debtor raised flimsy and spurious grounds in the Reply. 4. Before the Adjudicating Authority, the Corporate Debtor claimed that the Notice period was required to be of two months and the Operational Creditor served only 1 month 5 days period and that Corporate Debtor was not liable to make payments as claimed. The Corporate Debtor claimed that because of the Operational Creditor, it had rather suffered losses. 5. The Adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed without detailing the Judgment. The reasoned Judgment appears to have come only subsequently which the Appellant claims was of 18th October, 2019 which, before us, is not disputed as such by the Operational Creditor. In our view, admission of an Application under section 7, 9 or 10 entails serious trigger of the provisions of IBC and it is improper for the Adjudicating Authority to pass such cryptic Order like The Petition is admitted. Detailed Judgment later on. It is another thing if the complete Judgment is dictated in open Court which can be transcribed and signed later but not to dictate the Judgment itself and admit the Petition like one under section 9 proceeding under the IBC, should not have been done. On 10-10-2019 when the two line Order was passed, no IRP had been appointed and no directions were issued. Learned Counsel for the Corporate Debtor referred to Section 5(12) to submit that where Interim Resolution Professional (IRP) is not yet appointed while admitting the Application, the commencement date gets scheduled to the date on which Interim Resolution Professional is appointed. This is yet another reason why we have just observed that it is quite inappropri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the standard operating procedure was required to be issued so as to have security with regard to making full and final payments to employees when they Leave, Resign or are Terminated. The argument is that the Operational Creditor was aware of such operating procedure which was sent to senior officials like Appellant for implementation. Record shows, that when the Operational Creditor sent email at 8.21 P.M. tendering his resignation on 11th March, 2017 (as at Page - 45), the partner of the Corporate Debtor sent reverse e-mail at 11.32 P.M. and sought reasons for the same and at the same time called upon the Operational Creditor (see Page 44) as under:- (1) Clear all the outstanding from all distributors (2) Clear all the communication with MT's and hand over to Rakesh Somaya on his joining (3) Complete the tasks in hand like listing with Spar/Reliance/Walmart/DMart (4) Please close the pending issues with Grofers (5) Please clear all issues and grievances of existing Distributors (6) Need to clear all the formalities of CPC/CSD and handover to new joinee (7) Please continue till appropriate replacement has been found 13. On 14th March, 2017, the mana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout any delay. The clarity was already given to the management regarding during ZSMs meeting on 7th 8th April 2017. I wish to inform you that I am available on 9619997006 for any further clarification and also assure you and the management that will provide all the possible support help if required at any time. As discussed, I will hand over all the company's asset to Mr. Prashant Mane and will obtain his acknowledgement and send you all the details. In another e-mail of the same date of 15th April, 2017 at 6.32 P.M., the Corporate Debtor informed the Operational Creditor that his relieving from the system and F F is subject to clearance from all concerned departments on realisation to settlement of all due recoveries. Referring to all this, the learned Counsel for the Appellant submitted that apparently and clearly there were responsibilities to be discharged by the Operational Creditor before he could really walk away after the resignation. The learned Counsel further referred to e-mails exchanged between the Operational Creditor and Corporate Debtor, copies of which are at Pages - 68 to 71 of the Reply (Diary No. 16834). This exchange of e-mails appears to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
