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Judgment
ORDER
Per: Rajasekhar V.K., Member (Judicial)
This is a Company Petition filed under section 9 of the Insolvency and Bankruptcy Code, 2016 (IBC) by Mr. Salil Shashank Kulkarni (Operational Creditor), an individual (employee), seeking to initiate Corporate Insolvency Resolution Process (CIRP) against Rubique Technologies India Private Limited (Corporate Debtor).
The Corporate Debtor is a private company limited by shares and incorporated on 22.10.2014 under the Companies Act, 2013, with the Registrar of Companies (RoC), Maharashtra, Mumbai. Its CIN is U67190MH2014PTC258836. Its registered office is at B1-401, Kanakia Boomerang, Yadav Nagar, Chandivli, Andheri (East), Mumbai 400072, in the State of Maharashtra. Therefore, this Bench has jurisdiction to deal with this petition.
The present petition was filed on 28.11.2019 before this Adjudicating Authority on the ground that the Corporate Debtor failed to make payment of a sum of ₹48,79,653.00 (Rupees forty-eight lakh seventy-nine thousand six hundred and fifty-three only) as principal and ₹2,10,976.00 (Rupees two lakh ten thousand nine hundred and seventy-six only) as interest as on 01.11.2018, which is stated to be the date of default.
The case of the Operational Creditor is as follows: -
The Operational Creditor was appointed as Assistant Vice President [Employee Code: BDF0054] in the Corporate Debtor vide order of Appointment dated 16.01.2015. He continued to work with the Corporate Debtor till 25.06.2019 (AN), when his resignation was accepted. At the time of his resignation, he held the position of Senior Vice President;
A communication dated 01.07.2019 placed at Annexure 'E' reveals that the Operational Creditor-Employee was relieved of his services with effect from the afternoon of 25.06.2019 and that the Corporate Debtor had promised to process his full and final settlement in accordance with company policy. The Appointment order has also been placed on record as Annexure 'C' at pp.13-15;
The salary for the period from October 2018 to June 2019 has not been paid to the Operational Creditor-Employee;
The Operational Creditor-Employee addressed a letter dated 25.10.2019, requesting for release of his outstanding salary and expenses. The Corporate Debtor sent a reply dated 04.11.2019, acknowledging that the salary for the said period was outstanding, but stated that there was financial crisis in the company and therefore needed more time to make the payment. The Corporate Debtor, however, made payment of a sum of ₹3,06,508/- to be adjusted towards outstanding salary.
On 05.11.2019, the Operational Creditor-Employee wrote another letter requesting for release of the outstanding salary. The Corporate Debtor replied on the same date, stating that it is not possible to make any further payment having regard to the financial position of the company. Copies of the four correspondences have been placed as Annexure G (colly) at pp.22-25.
This being a case of an employee-Operational Creditor, there are no invoices. Bank statements are attached as Annexure 'H' at pp.27-95. The total debt due and payable to the Operational Creditor is ₹50,90,629.00 (Rupees fifty lakh ninety thousand six hundred and twenty-nine only), as mentioned at page 12 of the Petition.
The Operational Creditor had served a Demand Notice in Form 3 dated 06.11.2019 to the Corporate Debtor (Annexure 'I', pp.96-99) in terms of section 8 of the IBC. The Corporate Debtor has not replied to the Demand Notice. Necessary affidavit of No Dispute in terms of section 9(3)(b) of the IBC has been annexed at pp.108-111.
We have heard the arguments of both sides and perused the records.
The Corporate Debtor has unequivocally acknowledged the debt vide its letters dated 01.07.2019, 04.11.2019 and 05.11.2019, as seen from the Petition at pp.13, 23 and 24. Further, at the hearing on 10.02.2020, at the request of the learned Counsel for the Corporate Debtor, two weeks’ time was granted to arrive at settlement terms, and the matter was listed on 04.03.2020.
On 04.03.2020, copies of the email exchanged between the parties were handed over across the bar. A perusal of this correspondence reveals that on 02.03.2020, learned counsel for the employee-Operational Creditor addressed a communication to the Corporate Debtor, drawing attention to this Adjudicating Authority’s order dated 10.02.2020, and stating that there has not been a single call from the side of the Corporate Debtor towards settlement. The Corporate Debtor replied vide email of the same date, i.e., 02.03.2020, to the effect that “we have reviewed the matter internally but will not be able to give any payment commitment before next eighteen months due to financial constraints.” This email has remained uncontroverted. Therefore, there is a liability that is clearly admitted by the Corporate Debtor.
The application made by the Operational Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount of one lakh rupees stipulated under section 4(1) of the IBC at the relevant time. Therefore, the default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor.
The Operational Creditor has proposed the name of Mr Ajay Gupta, Registration No.IBBI/IPA-001/IP-P00192/2017-18/10371, as the Interim Resolution Professional of the Corporate Debtor. He has filed his written communication in Form 2 as required under rule 9(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016.
It is, accordingly, hereby ordered as follows: -
The petition bearing CP (IB) No.4304/MB.II/2019 filed by Mr. Salil Shashank Kulkarni, the Operational Creditor (Employee), under section 9 of the IBC read with rule 6(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 for initiating Corporate Insolvency Resolution Process (CIRP) against Rubique Technologies India Private Limited [CIN: U67190MH2014PTC258836], the Corporate Debtor, is admitted.
There shall be a moratorium under section 14 of the IBC, in regard to the following:
The institution of suits or continuation of pending suits or proceedings against the Corporate Debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority;
Transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein;
Any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (Sarfaesi) Act, 2002;
The recovery of any property by an owner or lessor where such property is occupied by or in possession of the Corporate Debtor.
Notwithstanding the above, during the period of moratorium,-
The supply of essential goods or services to the corporate debtor, if continuing, shall not be terminated or suspended or interrupted during the moratorium period;
That the provisions of sub-section (1) of section 14 of the IBC shall not apply to such transactions as may be notified by the Central Government in consultation with any sectoral regulator;
The moratorium shall have effect from the date of this order till the completion of the CIRP or until this Adjudicating Authority approves the resolution plan under sub-section (1) of section 31 of the IBC or passes an order for liquidation of Corporate Debtor under section 33 of the IBC, as the case may be.
Public announcement of the CIRP shall be made immediately as specified under section 13 of the IBC read with regulation 6 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016.
Mr Ajay Gupta, Registration No.IBBI/IPA-001/IP-P00192/2017-18/10371, having address at A-701, La Chapelle, Evershine Nagar, Malad (West), Mumbai, 400064 [email: fca.ajaygupta@gmail.com] is hereby appointed as the Interim Resolution Professional (IRP) of the Corporate Debtor to carry out the functions as per the IBC. The fee payable to IRP or, as the case may be, the RP shall be compliant with such Regulations, Circulars and Directions as may be issued by the Insolvency and Bankruptcy Board of India (IBBI). The IRP shall carry out his functions as contemplated by sections 15, 17, 18, 19, 20 and 21 of the IBC.
During the CIRP period, the management of the Corporate Debtor shall vest in the IRP or, as the case may be, the RP in terms of section 17 of the IBC. The officers and managers of the Corporate Debtor shall provide all documents in their possession and furnish every information in their knowledge to the IRP within a period of one week from the date of receipt of this Order, in default of which coercive steps will follow.
The IRP/RP shall submit to this Adjudicating Authority periodical reports with regard to the progress of the CIRP of the Corporate Debtor.
Considering that the Operational Creditor is an employee, he shall deposit a sum of ₹1,00,000/- (Rupees one lakh only) with the IRP to meet the expenses arising out of issuing public notice and inviting claims. These expenses are subject to approval by the Committee of Creditors (CoC).
In terms of section 9(5)(i) of the IBC, the Registry is directed to communicate this Order to the Operational Creditor, the Corporate Debtor and the IRP by Speed Post, email and WhatsApp immediately, and in any case, not later than two days from the date of this Order. Additionally, the Operational Creditor shall communicate a copy of this order on the Corporate Debtor, the IRP and the Registrar of Companies, Maharashtra, Mumbai, so that they are all put on notice that the Corporate Debtor is under CIRP. These directions shall be carried out immediately, and, in any case, not later than three days from the date of pronouncement of this Order.
A copy of this Order be also sent to the Registrar of Companies, Maharashtra, Mumbai, for updating the Master Data of the Corporate Debtor. The said Registrar of Companies shall send a compliance report in this regard to the Registry of this Court within seven days from the date of receipt of a copy of this order.