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TMI Blog2021 (11) TMI 792X X X X Extracts X X X X X X X X Extracts X X X X ..... JUDGMENT DR. ASHOK KUMAR MISHRA, TECHNICAL MEMBER 1. The Appeal has been preferred under Section 61 of the Insolvency and Bankruptcy Code, 2016 (In short IBC) against the Impugned Order dated 03.03.2020 passed by the NCLT, New Delhi Bench in CP (IB) No. 1759/ND/2019 filed under Section 9 of IBC. 2. The Appellant is seeking the relief of setting aside the Impugned Order as stated above passed by the Adjudicating Authority on 03.03.2020 and admit the Application filed by the Appellant and Corporate Insolvency Resolution Process be initiated against the Corporate Debtor-Respondent. 3. The Adjudicating Authority has not admitted the application under Section 9 on the ground that primarily there is an existence of dispute. The Adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uirements and have created all such problems. The Appellant was providing service at mutually agreed rate and was submitting the bills for clearance well in time but the Respondents used to raise objections with malicious intentions etc. They have never raised complaint within five days as required in the agreement. Repeated requests and reminder to clear out standing dues for its services has not been complied with by the Respondents. They were supposed to release 90 percent of payment of the bills value by 6th of every month but they were never releasing within due time. They have deducted TDS but have not released outstanding bills. The Appellant sent demand Notice dated 17th May, 2019 under the Code which was acknowledged by the Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admitted amount of interest" and thereby qualified to be a financial debt. 5. The Respondent has submitted that the Appellant was required to comply with various statutory provisions like minimum wages act, payment of wages act, payment of bonus act and other applicable laws in respect of its employee/staff deputed at the sites of the Respondent Hospital. Further, as per the mandate of Clause 4(k) of the Service Agreements dated 01.08.2016 and 12.10.2016, which agreements are identical, the Service Provider (Appellant herein) was under an obligation to ensure compliance of the aforesaid statutory provisions and furnish documents with every invoice in support of the same, which documents were instrumental in determining the amount of monthl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of wages in full or the unpaid balance due. Therefore, it becomes necessary for the principal employer to witness disbursement of wages to the contract labour by the contractor, collect all the necessary documents that establishes that the statutory benefits are being made available to the contract labours by the contractor. The Appellant has also failed to meet contractual obligations including statutory compliances. The Appellant has raised various inflated invoices. However in order to comply with income tax laws they have deducted certain TDS and deposit of TDS does not amount to acknowledgment of amount raised in the invoices. Reliance is placed on "S.P. Brothers v. Biren Ramesh Kadakia" 2008 SCC Online Bom 1599(Relevant Para 8) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment mistake you have done in while enclosing the supporting documents for the month of Oct-2018 is irrational. Further, please note that the deficiency that has come to our notice is only for the month of Oct-2018 and the Management of the Medeor Hospital reserves its right to evaluate the other bills and make appropriate deductions in case and deficiency is found in other bills. This clearly depicts that the manipulation done by you in the month of Oct-2018 was deliberate and intentional. Thus the management has considered that such act of yours is in breach of trust & violation of the Section 6 of Payment of Wages Act (Amendment) 2017 which was levied upon you at the time of getting under this contract for providing Housekeeping serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clarity, para 51 of the Judgment in the matter of Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software Pvt. Ltd. is extracted below: "51. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the "existence" of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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