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TMI Blog2022 (3) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, thereby causing huge loss to the Respondent/Corporate Debtor and, therefore, the Appellant is guilty of gross misconduct. In fact, the amounts which was to be refunded by the Corporate Debtor/Respondent is ₹ 2,13,000/-, during the period September 2018 to January, 2019 and that the Respondent/Corporate Debtor was seriously considering taking legal action for recovery of the amounts from the Appellant/Operational Creditor - the Respondent/Corporate Debtor denies the claim of the Appellant/Operational Creditor of ₹ 3,74,004/- together with interest @ 18% p.a. CIRP under I B Code - HELD THAT:- The CIRP under the I B Code, 2016 is not to be determined by a Court of Law. Further, CIRP is not an adversarial litigation. The proceedings under the I B Code are summary in character. The Adjudicating Authority does not determine a Money Claim or Suit. I B Code is not a Debt Enforcement Procedure. Purview of review - HELD THAT:- While scrutinising/examining a petition/application under the I B Code, an Adjudicating Authority is to decide (a) whether there is an operational Debt as per Section 4 of the Code (b) whether the documentary material/evidence submitted alongw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 passed by the Adjudicating Authority , (National Company Law Tribunal, Hyderabad Bench). 2. The Adjudicating Authority , (National Company Law Tribunal, Hyderabad Bench) while passing the impugned order dated 12.11.2021 in CP(IB)No.791/9/HDB/2019 (Filed by the Appellant /Operational Creditor/Applicant under Section 9 of the I B Code 2016 r/w Rule 6 of the I B (AAA) Rules, 2016) at paragraph 5 to 11 had observed the following:- 5.We have heard the Learned Counsel for Operational Creditor and Learned Counsel for Corporate Debtor. The Learned Counsel for Operational Creditor would contend that after attending an interview Ms A Chandani was offered the post of Assistant Clinic Manager vide Letter of Intent dated 14.08.2014 with Date of Joining as 01.09.2014 with a salary of ₹ 30,000/- per month and with her sheer hard work, skill and expertise, she was steadily progressing and received consistent praises for her dedication towards work and constantly raised her pay for the same. Due to martial life problems, she had requested the company for a transfer from Hyderabad to Chennai which was granted by the company. Subsequently, to stay away from miserable life she Dr. D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Debtor with the competitors. 11. We have thoroughly perused the records and heard the submissions made by the Counsel for Petitioner and Counsel for Respondent. Prima facie there is a breach of Employment Contract, she went outside without sanction of any leave or permission. and consequently dismissed the Application . APPELLANT S SUBMISSIONS: 3. The Learned Counsel for the Appellant/Applicant/Operational Creditor submits that the impugned order passed by the Adjudicating Authority , (National Company Law Tribunal, Hyderabad Bench) had failed to appreciate that the Email correspondence exchanged between the Appellant/ Operational Creditor and the Respondent/Corporate Debtor, wherein it was admitted that her settlement would be made, based on the Notice Rules , i.e. payment of 2 months salary, in lieu of Termination and the said fact was even mentioned in her Appointment Letter . 4. According to the Learned Counsel for the Appellant, the Appellant s employment was terminated for taking unsanctioned leave and that was the reason she was given two months salary in lieu of Termination resting on Notice Rules of the Company as per their emplo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t had issued a Notice on 22.07.2019 under Form 3 , as per the I B Code, 2016 claiming a sum of ₹ 3,74,004/- from the Respondent Company and the same was replied dated 09.08.2019 with tall claims, though admitting the Appellant s legal dues. 10. The Learned Counsel for the Appellant contends that the for the repayment of Operational Debt , the Appellant filed a CP(IB) No.791/9/HDB/2019, as per Section 9 of the I B Code against the Respondent and since, the Adjudicating Authority had dismissed the Application, the Appellant has filed instant Appeal before this Tribunal, challenging the impugned order dated 12.11.2021. EVALUATION 11. A perusal of the contents of Form 5 Application filed by the Appellant/Operational Creditor to initiate Corporate Insolvency Resolution Process under the I B Code, 2016 (under Rule 6 of the Insolvency Bankruptcy (Application to Adjudicating Authority) Rules 2016 under the caption Part IV Particulars of Operational Debt it is mentioned as under: 1 TOTAL AMOUNT OF DEBT DETAILS OF TRANSACTION ACCOUNT ON WHICH DEBT FELL DUE AND THE DATE FROM WHICH SUCH DEBT FELL DUE Total Amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment of any compensation by way of her salary/wage or otherwise, according to the undertakings given by the Appellant, while in service. 15. Besides the above, in the Reply Notice dated 09.8.2019, the Respondent/Company had mentioned that the Appellant left the organisation and apparently influenced other staff (including Doctor) to leave the organisation and join a competitor, which amounts to gross misconduct. Apart from that, the Respondent/Company had denied the sum of ₹ 3,74,004/- together with interest @ 18% claimed in the Notice by the Appellant. 16. Before the Adjudicating Authority , the Respondent/Corporate Debtor had filed a Reply/Counter to CP(IB)No.791/9/HDB/2019 wherein it was among other things mentioned that there was an explicit admission in Email Correspondence of the Appellant/Operational Creditor that she was relieved from the job on 08.10.2018 and further the Appellant had confirmed that after being relieved from the job on 08.10.2018 she had not associated herself with any other company. Therefore, a plea was taken by the Respondent/Corporate Debtor that the Appellant s claim for three months salary (which include October and November, 2018 sala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . v) Investing or holding outside directorship in suppliers, customers or competing companies including financial speculations, where such investment or directorship might influence in any manner a decision or course of the Company. vi) Improperly using or disclosing to the Company any proprietary information or trade secrets of any former or concurrent employer or other person or entity with whom obligation of confidentiality exist. vii) Unlawfully discussing prices, costs, customers, sales or markets with competing companies or their employer. viii) Engaging in any conduct which is not in the best interest of the Company as might be decided by an appropriate internal authority or panel construed by Manager/MD. You shall take every necessary action to ensure compliance with these guidelines and to bring problems areas to the attention of higher management for review. Violations of this conflict of interest policy shall result in the termination of employment under the Agreement, as the breach under this clause shall be construed to be a material breach of the Agreement. You shall conduct yourself in conformity with the code of conduct from time to tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty who had violated, is to make compensation, in regard to the direct consequences flowing from the said violation and not in respect of loss or damage indirectly or remotely caused as per decision Pannalal Jankidas V Mohanlal, AIR 1951 SC 145. 25. Also that the principles of awarding damages for a reasonable period/reasonable period of notice will come into play, only when the Contract of Employment is not for a fixed period as per decision S.S Shetty V Bharat Nidhi Ltd reported in (1958) SCR Page 442. That apart, the damages are to be awarded as compensation for any loss or damage arising naturally in the usual course of things from the breach of contract as per decision of Hon ble Supreme Court in Karsandas H Thacker V Saran Engg Co Ltd, reported in AIR 1965 SC 1981. 26. According to the Respondent, the Appellant/Operational Creditor was the CRM Manager , an important position of the branch and that many clients of the Respondent, who were availing the services of the Branch had abruptly cancelled their procedures under the influence of the Appellant/Operational Creditor . Which was poaching of clients , thereby causing huge loss to the Respondent/Corporate Debtor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Information Utility. Further, an Adjudicating Authority is to find out whether the Dispute in issue needs further investigation and the said Dispute is not a weak one. To put it succinctly, if an Adjudicating Authority is subjectively satisfied that the Dispute in question is plausible one and was raised as specified under Section 8(2)(a) then the Adjudicating Authority as per Section 9(5)(ii)(d) is to reject the Application , filed by the Applicant praying for the initiation of Corporate Insolvency Resolution Process . 31. In the instant case, as per Clause 13 of the Appointment Letter of the Appellant/Operational Creditor, the Employment may be terminated without notice or payment in lieu of Notice, in the event of any breach of any terms of the Contract . 32. Be that as it may, in view of the detailed upshot, this Tribunal taking note of the surrounding facts and circumstances of the present case, in an holistic manner and on a consideration of contentions advanced on behalf of the Appellant, this Tribunal comes to an irresistible conclusion that there is an existence of Dispute relating to the Contract of Employment of the Appellant with the Responden ..... X X X X Extracts X X X X X X X X Extracts X X X X
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