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TMI Blog2022 (2) TMI 1014X X X X Extracts X X X X X X X X Extracts X X X X ..... lication as averred by the Operational Creditor are as follows: i. That the Operational Creditor was the employee of the Corporate Debtor and provided her services from 01.04.2007 to 31.07.2019. It was further submitted that the Corporate Debtor is a Non-Banking Financial Company, whose main business is to lend money to borrowers and to charge interest on the loan, hire-purchase financing, financing lease, discounting of bills, trading and investing in stocks and other aspects of financial business. ii. The Operational Creditor submitted that the Corporate Debtor has not paid her salary of Rs. 11,25,000/- for the period starting from 01.05.2018 to 31.07.2019. It was also alleged that the Corporate Debtor has not paid the statutory payments of Gratuity for twelve years and the due amount of Gratuity is Rs. 5,19,231/-. It was further alleged that the Corporate Debtor has unreasonably withheld the total amount of Rs. 16,44,231/- which is due and payable to the Operational Creditor. iii. That on 24.09.2019 the Operational Creditor issued the statutory Demand Notice under section 8 of IBC, 2016 upon the Corporate Debtor demanding the payment of Rs. 20,76,932/- which was duly serve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. The Corporate Debtor annexed the copy of the Company Petition with reply as Annexure R-5 and submitted that the abovesaid petition constitutes a dispute under section 5(6) of IBC, 2016. e. The Corporate Debtor submitted that it has also replied to the Demand notice of the Operational Creditor within 10 days of delivery of the same and had in its Reply raised the dispute with respect to the claim of the Operational Creditor. It was further submitted by the Corporate Debtor that the Operational Creditor is allegedly claiming salary from 01.05.2018 to 31.07.2019 as well as Gratuity in her Application under Reply, however, the Operational Creditor had stopped working in the Corporate Debtor Company from 22.02.2018 and was paid a salary by the Corporate Debtor Company up to March, 2018. Thereafter, a Criminal Complaint was filed against the Operational Creditor on 31.05.2018 the Corporate Debtor has also annexed the copy of the Criminal Complaint dated 31.05.2018 as Annexure R-6. f. It was further submitted that the Corporate Debtor filed criminal cases against the Operational Creditor and her husband which are pending adjudication in the court of Sh. Deepak Vats, Dwarka District ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l further submitted that the Corporate Debtor in its reply stated that the services of the Operational Creditor were terminated on 22.03.2018 but vide its letter dated 17.09.2019, the Corporate Debtor stated that the resignation of Operational Creditor dated 03.09.2019 cannot be accepted. 5. The Ld. Counsel while arguing the matte further submitted that even if the reply of Corporate Debtor is taken on its face value, it will become clear that at least the Operational Creditor is entitled to payment of gratuity amount. This being an Insolvency Proceeding, it is established that Corporate Debtor is not in a position to pay the admitted debts over and above Rs. 1,00,000/- and that is why the Corporate Debtor is a fit company to go under Corporate Insolvency Resolution Process. 6. Ld. Counsel for the Operational Creditor also submitted that the ground of prior dispute has been raised for the first time in its reply to the Demand Notice and even prior dispute, which has been raised, does not concern with the existence of amount of debt, the quality of goods and services or the breach of the representation or the warranty. 7. The Ld. Counsel for the Corporate Debtor while arguing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntrol or takeover the management of the 'Corporate Debtor'". 9. We have heard the arguments advanced by the Learned Counsels for both the parties and perused the documents filed, the Operational Creditor herein has prayed for the initiation of Corporate Insolvency Resolution Process against the Corporate Debtor for the outstanding debt of Rs. 16,44,231/-. The Statutory Demand Notice dated 24.09.2019 under section 8 of IBC, 2016 has been sent by the Operational Creditor to the Corporate Debtor. The Corporate Debtor replied to the Demand Notice by way of letter dated 05.10.2019 and raised pre-existence of dispute. 10. The fact that the Operational Creditor sent the Demand Notice under section 8 of IBC, 2016 dated 24.09.2019 in prescribed Form-3 demanding the payment of unpaid operational debt amounting to Rs. 20,76,923/- however, the Operational Creditor while filing the present application in prescribed Form-5 wherein, the part-IV containing Particulars of Operational Debt states that the Total amount of debt is 16,44,231/- which is a contrary amount to what was stated in section 8 Demand notice, however the Ld. Counsel for the Operational Creditor submitted that reason fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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