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TMI Blog2022 (8) TMI 1112X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant, even though there is no such reference or mention is made in the order dismissing the writ petition and no inference of dispute can be drawn from what is stated in the said order - the Appellant was appointed as a WTD of the corporate debtor on 29.9.2015 while he was already working as CFO, and continued as WTD till 20.5.2019. Since he was paid his total emoluments and termination benefits till 31.3.2019 for his work as CFO, he is entitled to receive payment for the period 1.4.2019 till 20.5.2019 for his work as WTD, which is an operational debt in default and payable by the corporate debtor. The Adjudicating Authority has erroneously dismissed Appellant s application under section 9 - The case is sent to the Adjudicating Authority for passing necessary order after the admission of section 9 application - Appeal disposed off. X X X X Extracts X X X X X X X X Extracts X X X X ..... tion was dismissed as being pre-mature and not on the basis of any dispute between the Appellant and Respondent. The Appellant has claimed that the Adjudicating Authority has, therefore, erred in presuming the action through WP No. WP(C) 4407/2019 was in relation to some dispute prior to delivery of demand notice, and rejected the section 9 application on such basis. 4. We heard the arguments advanced by learned counsels of both the parties and perused the record. 5. The learned counsel for appellant has submitted that he was appointed as CFO of the corporate debtor on 10.3.2014 and later as Additional Director of the company in March, 2015, and also as a WTD after approval in the AGM on 29.9.2015. She has claimed that in such a situation, the appellant started to function as WTD from 29.9.2015 in addition to already working as CFO. She has further submitted that the appointment letter dated March 10, 2014 (attached at pp. 138-146 of the appeal paperbook) relates to Appellant's appointment as CFO and the letter of termination dated March 20, 2019 (attached at pg. 149 of the appeal paperbook) relates to termination of his appointment only as CFO of the corporate debtor-company, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticles of Association (in clauses 48 and 49) of the company provide for payment of remuneration, the Appellant has not shown any record in support of his claim that he was to be provided extra remuneration for his work as WTD. He has submitted that the Appellant's services as WTD could be terminated on 20.5.2019 as due procedure had to be followed as provided in the Companies Act for his removal, but all his dues for services rendered as a WTD has also been paid by the corporate debtor. 9. In rejoinder, the learned counsel for appellant has referred to the salary slip (attached at page 102 of the appeal paperbook, vol.I) to emphasize that the appellant was given his full and final payment alongwith gratuity, leave encashment, notice pay and other benefits in March, 2019 only after termination of his services as CFO, whereas no payment has been made for the period 1.4.2019 till 20.5.2019 when the Appellant continued to work as WTD. She has clarified that the emoluments of the WTD are included in the form MR-1 which was filed by the corporate debtor after Appellant's appointment as WTD, and the calculation for the debt due for payment is given in the calculation sheet (attached on p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Director as on date and there is no process started for removing him as a whole time Director from respondent no.4-company. He further submits that if in future, the respondent no.4 decides that the petitioner shall be removed from the post of Director, the due process under the Companies act shall be taken. Since the petition is at pre-mature stage, the same is not maintainable and dismissed accordingly. Pending applications are also stand disposed of." 13. It is clear from reading of the order of the Hon'ble Delhi High Court (supra) that there is no reference to any dispute between the parties and the writ petition is dismissed as being at pre-mature stage. Further, the order records the statement of the Counsel for respondent 4-company that the petitioner is a Director as on 26.4.2019, and he shall be removed only after adopting the due process under the Companies Act from the post of WTD. 14. We follow the dictum laid down by Hon'ble Supreme Court in the matter of Mobilox Innovations Pvt. Ltd. v. Kirusa Software Private Limited [Civil Appeal No. 9405 of 2017, (2018) 1 SCC 353] that the pre-existing dispute must be a real one, and not a spurious, hypothetical or illusory one ..... X X X X Extracts X X X X X X X X Extracts X X X X
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