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Judgment
ORAL ORDER
The present application has been preferred under Section 9 of IBC, 2016 for initiation of CIRP qua the Respondent. Part-IV of the application reads thus:
To substantiate his plea regarding operational debt, Ld. Counsel for the Applicant could make a reference to appointment letter dated 26.11.2007.
It is quite weird that when appointment could be offered in November 2007, the effective date regarding emoluments is 01.01.2008. Even otherwise also, we find from Annexure-A to the appointment letter that when from 01.01.2008, the Leave Travel Allowance is shown as one month’s basic salary in a year and the amount of medical benefit is also at the rate of Rs. 15,000/- per annum, the Annexure-A to the Emoluments Revision Letter indicate that the Leave Travel Allowance and Medical Allowance were made payable on monthly basis. The Annexure-A to appointment letter and to the Emoluments Revision Letter dated 01.01.2023 reads thus:
XXXX
Still, the fact may be noted with the view that the same could be an arrangement between the Applicant and the Corporate Debtor. However, what is disturbing is that how employer’s contribution to Provident Fund for May 2025 could be treated as component of pay. As per the prescribed provisions of law, the contribution towards Employees Provident Fund is deducted from the salary of the Applicant and then the employer also make the contribution to the effect. Both the employee’s and the employer’s contributions are to be deposited in the Employees Provident Fund account.
We are also unable to appreciate that how the date of default qua the various amount mentioned in the statement showing recoverable dues from MARPOS India Pvt. Ltd. can be same.
If we go by the notice of termination dated 29.04.2025 served upon the Applicant, in Clause-3 (ii) (c) of the notice it has been mentioned that the emoluments and dues admissible to Applicant would be calculated by the Finance Department and the management was requested for the assessment and approval of the same for being presented to the Board/MD of the Company. At the first place there is no confirmation of the amount mentioned in the statement by the company and secondly we are unable to appreciate that how the amount which the company was liable to contribute towards Provident Fund would be treated as amount payable to the Applicant and how the default can be alleged in respect of said amount.
If the Company has flouted any law regarding contribution to the Provident Fund, it would be liable to action in accordance with law. However, the failure of the Company to make such contribution cannot be construed as a default. Besides, it is the Employees’ Provident Fund Organisation (EPFO) which is responsible for releasing the Provident Fund amount to the employee in terms of the applicable law. The inclusion of the Employer’s Provident Fund contribution in the calculation sought casts a shadow upon the correctness of the computation. Therefore, we are of the view that the present application is not maintainable. The statement showing recovery of dues, placed on record by the Applicant as Annexure-A9, reads thus:
As analysed hereinabove, no default can be alleged against the Corporate Debtor with respect to certain amounts referred to in the chart. It is not for this Tribunal to undertake calculations to determine the exact quantum of debt and default. While filing an application under Sections 7 or 9 of the IBC, 2016, the Applicant is required to disclose a specifically calculated and confirmed amount that has been defaulted by the Corporate Debtor.
It is also stare decisis that while considering an application under Section 9 of the IBC, 2016, this Tribunal cannot direct initiation of CIRP in respect of an unspecified or disputed amount of debt.
In view of the fact that the Applicant has failed to establish any specific amount of default on the part of the Corporate Debtor, we find no merit in the present application, and the same is accordingly rejected. No order as to costs. It goes without saying that the present order would not come in the way of the Applicant to seek redressal of his grievance regarding the amount due to him and not paid by the employer, in accordance with law.