Omega Laser Products B.V. Vs Anil Agrawal (NCLAT Delhi)
It is seen from the record that the remuneration of the MD is a ‘disputed question of fact’. It is not within our domain under IBC to ‘decide the issue of the fixation of the salary of the MD’, but to ascertain if there is any ‘Dispute’ regarding the issue. Having regard to the emails/correspondence and the Minutes on record, we are of the earnest view that the ‘Dispute’ raised is not a feeble legal argument nor is it a spurious one but one which is supported by evidence.
We are of the considered view that the Adjudicating Authority has not addressed either to the question of claims having been time barred nor to the issue of the existence of a ‘Pre-Existing Dispute’ between the parties.
For all the foregoing reasons the Impugned Order dated 15/02/2022 passed by the Adjudicating Authority is set aside and both these Appeals are allowed.
FULL TEXT OF THE NCLAT DELHI JUDGMENT/ORDER
1. Aggrieved by the Impugned Order dated 15/02/2022,passed by the Learned Adjudicating Authority (National Company Law Tribunal, New Delhi, Court-III), in C.P. (IB) No. 529/ND/2021, ‘M/s. Omega Icehill Pvt. Ltd.’/the ‘Corporate Debtor’ in Company Appeal (AT) (Insolvency) No. 194/2022 and ‘Mr. Tushar Kant Jindal’/the suspended Director of the ‘Corporate Debtor’ in Company Appeal (AT) (Insolvency) No. 195/2022, both preferred this Appeal under Section 61 of the Insolvency and Bankruptcy Code, 2016, (hereinafter referred to as ‘The Code’), dissatisfied by the Admission of the Corporate Insolvency Resolution Process (CIRP) in an Application filed by the Respondent/the ‘Operational Creditor’, under Section 9 of the Code.
2. Since both these Appeals arise out of a common Impugned Order and deal with common facts, they are being disposed of by this common Order.
3. The facts in brief are that Mr. Anil Agrawal/‘Operational Creditor’/Managing Director (hereinafter referred to as the ‘MD’), filed an Application under Section 9 of the Code on the ground that he was entitled to Rs.3Lakhs/- per month as remuneration from 16/01/2010, which was revised with effect from 01/08/2014 to Rs.4Lakhs/- per month, but the payment was also short of the agreed sum. It was stated that the shortfall in the salary of the MD would be paid when the financial position of the Company improves. While so, in May 2019, the MD was removed by the ‘Corporate Debtor’ with effect from 14/05/2019 without clearing his salary dues.
4. Learned Sr. Counsel Mr. Arun Kathpalia submitted that, the MD also filed a Petition under Section 241 & 242 of the Companies Act, 2013, (hereinafter referred to as ‘The Act’) alleging Oppression and Mismanagement against the Corporate Debtor Company; that the Appellant is a solvent Company and nothing is payable; that there was no signed Board Resolution increasing the salary from Rs.3Lakhs/- to Rs.4 Lakhs/- to Rs.5Lakhs/- or to Rs.7.5Lakhs/- as claimed by the MD in his Section 9 Application; that the MD was discharged on 15/05/2019; and drew our attention to the amounts of salary dues claimed in the Application:
