9911796707
TMI Blog2022 (4) TMI 885X X X X Extracts X X X X X X X X Extracts X X X X ..... rial available on record, it has been observed by the this Adjudicating Authority that Section 8 Demand Notice issued and the application under Section 9 has been filed by both the Operational Creditors jointly. The amount in default is arising out of the claims of a person and a company which is a separate legal entity. In order to deal with the issue in hand we would like to refer to the Judgement of Uttam Galva Steels Ltd V DF Deutsche Forfait AG and Anr (Company Appeal (AT)(I) 39/ 2017 Para as reiterated: "19. From the aforesaid provisions of Section 8 and 9 of I&B Code, it is clear that unlike Section 7, a notice under Section 8 is to be issued by an 'Operational Creditor' individually and the petition under Section 9 has to be filed by Operational Creditor individually and not jointly. 20. Otherwise also it is not practical for more than one operational creditor to file a joint petition individual Operational Creditors will have to issue their individual claim notice under Section 8 of the I&B Code. The claim will vary which will be different. Date of notice under Section 8 of the I&B Code in different cases will be different. It will have to be issued in format(s). Separ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .10.2018. Another invoice was raised on 21.10.2018 for an amount of Rs. 4,72,000/- and the Appellant sought an acknowledgement from the Corporate Debtor. It is further submitted that on 24.10.2018 when the same dues were sought to be paid, the Respondent accused the Appellant of unfair trade practice and sent an email on 24.10.2018 itself terminating the services of the Appellant with immediate effect. Hence the Appellants have sent a combined Notice on 25.10.2018 under Section 8 of the Code demanding a total sum of Rs. 25,70,656/-. The Learned Counsel strenuously argued that the Adjudicating Authority was not justified in rejecting the Application of the Appellant without adjudicating it on merits. It is further argued that the Adjudicating Authority had dismissed the Application on a hyper technical view that the Section 9 petition can only be filed individually, though both the Operational Creditors were owed an admitted debt above the threshold limit. 3. Submissions on behalf of the Learned Counsel for the Respondent. The Learned Counsel for the Respondent company M/s Aspek Media Pvt Ltd contended that a Joint Application by two or more Operational Creditors under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Vs Tayo Rolls Ltd (Company Appeal (AT)(I) No.112 of 2018). 7. It is seen from the record that vide order dated 07.12.2020 the Learend Adjudicating Authority had given time to the Applicants/Appellants herein to file the corrected Memo of Parties which was thereafter corrected. The matter was heard and an opportunity was also given to file additional documents but it is recorded in the order dated 07.12.2020 that no additional documents were filed. It is the main case of the Respondent Company that the First Appellant has rendered services to them as an employee but without the knowledge of the Corporate Debtor entered into agreements with other competing companies in the same line of work and hence the Corporate Debtor terminated the services of the First Appellant vide email dated 24.10.2018, the relevant letter is reproduced as hereunder: Emphasis supplied 8. On 02.11.2018 the Corporate Debtor served a Notice of Dispute in reply to the Appellant Notice dated 24.10.2018. 9. The Learned Adjudicating Authority has dismissed the Application on the ground that Section 8 Notice was issued by two Operational Creditors jointly placing reliance on the Judgement of this Tribunal in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble, keeping in view that there is no documentary evidence with respect to Consultancy Services having been hired by the Corporate Debtor as there was no Agreement/letter which deals with any 'Consultancy'. Hence we find no merit in the submission of the Appellant that a Joint Application is maintainable that the Corporate Debtor hired the services of the 2nd Appellant and that the Appellant is acting on behalf of the 2nd Appellant, specifically in the light of the termination letter issued by the Corporate Debtor, terminating the service of the 1st Appellant, in his capacity as an 'Employee'. 15. Section 9 of the Code reads as follows:- "9. Application for initiation of corporate insolvency resolution process by operational creditor.-(1) After the expiry of the period of ten days from the date of delivery of the notice or invoice demanding payment under sub-section (1) of section 8, if the operational creditor does not receive payment from the corporate debtor or notice of the dispute under sub-section (2) of section 8, the operational creditor may file an application before the Adjudicating Authority for initiating a corporate insolvency resolution process. (2) The applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
