Vishal Nain vs Oriel Financial Solutions Pvt. Ltd

The present application has been filed on behalf of the Operational Creditor/Petitioner praying therein to initiate the proceedings under Section 9 of the IBC. The facts of the case are that the petitioner was the employee of the Respondent/Corporate Debtor ("hereinafter referred to CD") company and in lieu of the service rendered by petitioner, he claimed the salary due for the month of August, 2018 (Rs. 52,805/- approx) and September, 2018 (Rs. 1,02,310/-) and in respect of the TA bills submitted during his official duty.

In pursuance of the Notice issued by this Adjudicating Authority, the CD appeared and filed reply.

We have heard the Ld. Counsel for the petitioner as well as Ld. Counsel for the CD. Ld. Counsel for the petitioner submitted that since in the month of August, 2018, he had not received the full salary rather the part payment was made and for the month of September, 2019, he has not given any salary, ground on which he demanded Rs. 7,83,876/- for the month of August and September, 2018, TA bills and six months restricted period. In response to that, the CD has sent the reply on 19.12.2018 stating the reasons for deducting the salary and that has also been stated by the petitioner in para 4 of the Legal Demand Notice in which he claimed that for the month of August, 2018 he had received the salary for 15 days only because the applicant was shown absent from the duty and that has been corroborated by the respondent by filing reply wherein it has been stated that the biometric attendance was being maintained by the CD on the basis of that applicant was found absent for the period of 16 days. He further submitted that thereafter he sent the Demand Notice as required under Section 8(1) of the IBC which is at page 49 of the application and claimed Rs. 1,81,876/- towards the salary of August & September, 2018 as well as against the TA Bills. In response to the Demand Notice again the CD raised the issue and reiterated the earlier reply sent by the CD.

We have heard the Ld. Counsel for the petitioner as well as CD. Ld. Counsel for the petitioner submitted that there is a manipulation in the attendance register maintained by the CD and that is the reason, it is not properly shown. He further submitted that he was never been absent from the service during the period so he is entitled to get the full salary for the month of August & September, 2018. On the other hand, Ld. Counsel for the CD submitted that biometric system of the attendance of the employee was being maintained by the CD which shows that the petitioner was absent during that period and that is the reason the petitioner was given less salary for the month of August, 2018. Ld. Counsel for the CD also submitted that revised pay slip was issued by the CD which is at page 24 of the reply filed by CD which shows that the salary of the petitioner was rightly deducted by the CD.

Considering the submissions made on behalf of both the parties, we find that prior to issuance of Demand Notice as required under Section 8(1) of the IBC when the petitioner sent the Legal Demand Notice then he received the reply in which the CD has raised dispute for the amount which has deducted from the salary of the petitioner and when the petitioner sent the demand notice under Section 1, then again the CD has reiterated the same which he has raised in the Legal Demand Notice and claimed the reasons why the amount is deducted from the salary of the petitioner. Considering these facts, in our opinion in view of Section 9(5)(ii), if notice of the dispute has been raised by the petitioner, in that case the Adjudicating Authority will not invoke jurisdiction under Section 9 of IBC. Section 9(5)(ii) is quoted below:

"reject the application and communicate such decision to the operational creditor and the corporate debtor, if--

(a) the application made under sub-section (2) is incomplete;

(b) there has been 4[payment] of the unpaid operational debt;

(c) the creditor has not delivered the invoice or notice for payment to the corporate debtor;

(d) notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility; or

(e) any disciplinary proceeding is pending against any proposed resolution professional:

Provided that Adjudicating Authority, shall before rejecting an application under sub-clause (a) of clause (ii) give a notice to the applicant to rectify the defect in his application within seven days of the date of receipt of such notice from the adjudicating Authority".

From the perusal of the aforesaid provision, we find that under Section 9(5)(ii) the grounds are mentioned on which the Adjudicating Authority shall reject an application filed under Section 9 by the Operational Creditor and one of the ground is that if the notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility, in that case the Adjudicating Authority shall reject the application and here in the case in hand, we have already stated in the aforementioned para that prior to the issuance of Demand Notice, the CD has raised the dispute, therefore, considering these facts that the application filed by the petitioner is not maintainable. Accordingly, we have no option but to dismiss the present application. Therefore, the application is dismissed without cost.