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TMI Blog2021 (12) TMI 1317X X X X Extracts X X X X X X X X Extracts X X X X ..... accrues on 30.12.2016 and the present application was filed on 13.03.2020 which is beyond 3 years of date of default. Hence, the application is barred by limitation. The e-mail dated 27.04.2017 at page 52 sent by Mahesh Venkateswaran to Mr. Mohan i.e. Applicant shows that that the HR of the Corporate Debtor will process an additional F F payment which covers the Unpaid notice period amount and the internal rating of the Applicant as per records does not provide for any variable payment or increment and e-mail dated 15.02.2017 at page 32 sent by Corporate Debtor to the Applicant shows that the applicant was informed that apart from ₹ 18,584/- nothing more is payable to the Applicant and outstanding would be processed within 15 days subject to the acknowledgement of the same by the Applicant. Further, the waiver of the notice period of 2 months was also communicated to the Applicant by the Respondent by way of relieving letter dated 06.01.2017. The present application is barred by limitation - Appeal dismissed. - Company Petition (IB) No. 823/ND/2020 - - - Dated:- 1-12-2021 - Abni Ranjan Kumar Sinha, Member (J) and Avinash K. Srivastava, Member (T) For the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The basis of the Operational Creditor is not maintainable in law as there are pre-existing disputes pertaining to the claims of the Applicant. Further, The Respondent terminated the Applicant's services on account of below average performance vide its letter dated 30.11.2016 giving Applicant one month notice. In response to the same, the Applicant willingly agreed to resign from the services and issued a resignation letter dated 01.12.2016. In response to the resignation letter, the Respondent withdrew the termination letter and a relieving letter was issued by the Respondent on this mutual arrangement with the Applicant that the remaining notice period of 2 months is deemed to be waived and nothing is due and payable to the Applicant on this account. Further, as per HR Policy applicable to all employees of Respondent including the Applicant, Respondent has full right to terminate employment of any employee in case his performance is found to be below par. In view of the fact, that the performance of Applicant was found to be below par, Respondent terminated the employment of the Applicant. Clause 17 of the Letter of Employment dated 23.11.2015 issued by Respondent in favour o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'ble Tribunal on 13.03.2020 for initiating corporate insolvency against the Respondent i.e. after a lapse of almost 3 months from the date of issuing Demand notice under the Insolvency Code on 12.12.2019. viii. It has been well settled by the Hon'ble Supreme Court in Mobilox Innovations Pvt. Ltd. vs. Kirusa Software Pvt. Ltd. that IBC is not intended to be substitute to a recovery forum and whenever there is existence of real dispute, the IBC provisions cannot be invoked. 5. The Applicant in his rejoinder dated 10.12.2020 submitted that: i. The Hon'ble Supreme Court in Babulal Vardharji Gurjar decided on 14.08.2020 has held that the limitation with respect to Insolvency Bankruptcy Code, 2016 for seeking initiation of CIRP u/s. 7 of the Code is governed by the Article 137 of the Limitation Act and is, therefore, 3 years from the date when right to apply accrue. ii. It is further submitted that in the instant case it was only on 21.12.2017, the first communication of denial was made by the Corporate Debtor, to make payment to the Applicant/Operational Creditor and the demand notice was sent to Corporate Debtor on 12.12.2019 and present Applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and was willing to serve until 28.02.2017 and it was the Corporate Debtor, who relieved him before the said last date and, therefore under employment contract, is anyway liable to make the payment for relieving the Applicant earlier than the notice period. ix. No process was followed as the Applicant had never requested for the alleged waiver of 2 months' notice period as he was more than willing to serve his requisite Notice Period of 3 months as mentioned in his resignation letter. x. The Applicant was not afforded any opportunity to represent before the Remuneration Committee. 6. The Operational Creditor averred in the application that the total amount of ₹ 20,85,087/- of which ₹ 7,01,388/- is the confirmed debt vide email dated 27.04.2017. The date from which such debt fell due is 30.12.2016. 7. Demand Notice dated 12.12.2019 under the Insolvency and Bankruptcy Code, 2016 was sent to the corporate debtor. The corporate debtor in its reply to the demand notice dated 28.12.2019 alleging that there was a pre-existing dispute with regard to the alleged payments claimed by the Operational Creditor. 8. Heard. Ld. Counsel for applicant and the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the HR of the Corporate Debtor will process an additional F F payment which covers the Unpaid notice period amount and the internal rating of the Applicant as per records does not provide for any variable payment or increment and e-mail dated 15.02.2017 at page 32 sent by Corporate Debtor to the Applicant shows that the applicant was informed that apart from ₹ 18,584/- nothing more is payable to the Applicant and outstanding would be processed within 15 days subject to the acknowledgement of the same by the Applicant. Further, the waiver of the notice period of 2 months was also communicated to the Applicant by the Respondent by way of relieving letter dated 06.01.2017. Therefore, in our opinion these e-mails do not admit that there is confirmed debt of ₹ 7,01,388/- and the Applicant is not liable for the variable part and increment arrears as it is to be given as per the internal rating of the Corporate Debtor which is denied by the Corporate debtor in this email. Therefore, in our opinion, by this e-mail, applicant fails to convince us that Corporate Debtor has acknowledged the debt as per Section 18 of Limitation Act. 12. At this Juncture, we would also like t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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