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TMI Blog2022 (12) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... also not in dispute that the Appellant is claiming his salary and other perks which is attached with the salary like gratuity bonus etc. The order of termination is based upon alleged fraudulent activities on the part of the Appellant - The Appellant has not claimed one months pay as provided in clause 3.2 rather he has asked the Respondent to pay the amount of his salary and other perks attached with it which already become due before the order of termination was passed. Therefore, it is the case of the Appellant that there is no dispute about the said amount. Section 8 of the Code deals with the necessity of issuing demand notice by the Operational Creditor to the Operation debtor before embarking upon his remedy of filing of application under Section 9 of the Code. The Respondent has tried to take advantage of Section 8(2)(a) to contend that the application is not maintainable because of the existence of a dispute before filing of the application and because of that dispute the service of the Appellant was terminated and that the Respondent had to register FIR also against the Appellant which is pending trial. Careful reading of Section 8(2)(a) of the Code provides that the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 016. He was promoted as Executive Director on 01.04.2014. Admittedly, the service of the Appellant was terminated on 16.08.2016. The Respondent has levelled allegations of fraud and breach of trust against the Appellant and also registered FIR No. 0544 dated 17.08.2016 under Section 420 and 406 of IPC and disassociated itself from the Appellant w.e.f. 16.08.2016 by way of public notice in the newspaper. The charge sheet in the FIR No. 0544 of 2016 has also been framed against the Appellant under Section 408/420/468/471/120B of the IPC. The service of the Appellant was terminated by the Respondent on account of fraudulent activities which has caused damage to the Company. 3. After the termination of his service, the Appellant, as an Operational Creditor served a notice under Section 8 of the Code and claimed an amount of Rs. 33,42,002/- calculated as under: S No. Work Date Due Amount in Rupees 1 Salary 01/08/2016 to 16/08/2016 Rs.156077/- 2 Flexible Pay Basket 01/04/2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he has been disassociated from the activities of the Respondent Company and that he had also tendered an apology, therefore, there is a pre-existing dispute between the parties, therefore, the Appellant is not entitled to maintain the application under Section 9 of the Code for the alleged amount. 7. Counsel for the Appellant, in support of his submissions, has referred to following decisions passed by the Hon ble Supreme Court and this Appellate Tribunal in the cases of M/s Innovative Industries Ltd. Vs. ICICI Bank Anr., Civil Appeal No. 8337-8338 of 2017, M/s S.S. Engineers Vs. Hindustan Petroleum Corporation Ltd. Ors., Civil Appeal No. 4583 of 2022, Thothappa Nainar Mohamed Sirajdheen Vs. Intex Technologies (India) Ltd., CA (AT) (Ins.) No. 462 of 2018, Naveen Kumar Dixit Shareholder of M/s Callina Care Overseas Pvt. Ltd. Vs. Jaswant International Pvt. Ltd. Anr., 2019 SCC Online NCLAT 324, Shapoorji Pallonji and Company Pvt. Ltd. Vs. M/s. Shore Dwellings Pvt. Ltd., CA (AT) (CH) (Ins.) No. 08 of 2021 and Amit Wadhwani Vs. Global Advertisers Anr., 2021 SCC Online NCLAT 325. 8. We have heard Counsel for the parties and perused the record with their able assistance. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of trust and are a direct violation of the terms and conditions of your employment with the company. During the investigation, you have accepted various counts of misconduct and breach of trust while in service of the company and agree that it is in direct violation of your association with us. Consequently, your services with the company are terminated and you stand relieved from your duties with immediate effect on August, 16, 2016. We will be in touch regarding your exit formalities. 10. It is also not in dispute that there is a criminal case registered against the Appellant in which charge has been framed. The Appellant tendered apology also and the Respondent has disassociated itself from the Appellant by way of notice published in the newspaper. This is also not in dispute that the Appellant is claiming his salary and other perks which is attached with the salary like gratuity bonus etc. The order of termination is based upon alleged fraudulent activities on the part of the Appellant. Clause 3.2 pertaining to the termination of employment provided in the employment agreement says that in case of termination each party shall provide the other party with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service of the Appellant was terminated and that the Respondent had to register FIR also against the Appellant which is pending trial. Careful reading of Section 8(2)(a) of the Code provides that the existence of dispute has to be in respect of the amount so claimed and it is not referable to any kind of dispute such as the one which is highlighted in the present controversy. In this regard, decision in the case of Thothappa Nainar Mohamed Sirajdheen (Supra) has been relied upon by the Appellant in which the Application filed under Section 9 of the Code was admitted and was challenged before this Tribunal on the ground that there exist a dispute because of a criminal case lodged against Mohammed Sirajudden, MD of the CD who had purchased certain material which has no concern with the business of the CD and the cheques issued by him were bounced and criminal case was lodged against him. It was held by the Adjudicating Authority that criminal liability is pending consideration before a court of competent jurisdiction but since there was no suggestion that the CD had raised any dispute about the supply or quality of goods prior to issuance of demand notice, the Adjudicating Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X
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