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TMI Blog2021 (9) TMI 1381X X X X Extracts X X X X X X X X Extracts X X X X ..... ce rendered by him to the corporate debtor while he was in service. Of course, service benefits accrues out of rendering service but the intention and object of code is not recovery and is only resolution - the words goods and services used in the definition of Operational debt cannot be stretched to service benefits arising out of service. The words goods and services shall be interpreted to mean those that are necessary to keep the company as a going concern. This is also evident from exempting goods and services from the purview of moratorium declared under section 13 of the code. Therefore, the company petition is liable to be dismissed as the amount claimed by the petitioner does not qualify as on Operational Debt . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... davit in reply of Mr. Ashok B. Gawari, Company Secretary of the respondent opposing the above company petition on various grounds mentioned in the reply including the ground of maintainability. 3. The case of the petitioner is that he has worked as an employee in the corporate debtor company and attained superannuation on 31.10.2016 and the corporate debtor failed to pay the following service benefits payable to the petitioner: - Sr. No. Particulars Amount (Rs.) 01. Gratuity 10,00,000/- 02. EL Encashment 6,74,273/- 03. LTC 6,6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The said matter was heard at length by the Hon ble Tribunal and after hearing the judicial member and the technical member differed in their views. The Hon ble judicial member was pleased to dismiss the said company petition no. 2482/2018 while the learned Technical member passed a dissenting judgement in the matter and the matter was referred to learned Third Bench and the matter is pending of hearing before the learned third member and subsequently vide order dated 06.12.2019 even proceedings before the learned Third Member have been stayed by the Hon ble Bombay High court on Writ petition No. 11366/2019 with Interim Application No. 1/2019 filed by the respondent company. 7. Heard the arguments of the counsels appearing on both sides a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . To add this as rightly contended by the respondent the petitioner had already obtained an order from the gratuity commissioner and the remedy of the petitioner if any is to go for enforcement of the said order. It is also clear from the submissions of the corporate debtor which was not disputed by the petitioner that the petitioner did not accept the gratuity amount offered by the corporate debtor in the pending writ petition before the Hon ble Bombay High Court when it was offered along with the other petitioners which is his own fault and therefore the question of resolution of Operational Debt does not arise, as no person shall be entitled to take advantage of his own wrong as per law. 8. In view of the above Findings and observatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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