Rizwaan Khaleel vs Spicejet Limited

IN THE MATTER OF: Rizwan Khaleel ...Appellant Vs. Spicejet Ltd. ...Respondent

Present: For Appellant: Mr. Vivek Malik, Mriganga Dutta, Mr. Karan Aggarwal, Advocates For Respondent: None

ORDER

(Through Virtual Mode)

10.12.2021: Heard Learned Counsel for the Appellant Shri Dutta.

This appeal has been filed against the judgement and order dated

08.10.2021 passed by 'National Company Law Tribunal', New Delhi Bench-V in

CP(IB) No. 791/ND/2020 by which application filed by the Appellant u/s 9 of

'Insolvency & Bankruptcy Code', 2016 (IBC) has been rejected. The Appellant

was employed in the Respondent Company. He gave a letter for resignation on

1st July, 2016 seeking to resign from the services of 'Corporate Debtor' effective

from 01.01.2017.

2. The Appellant's case is that he received salary only upto October, 2016.

He claimed to have submitted his I-Card etc. on 30.11.2016. He did not receive

his salary for November and December, 2016 and other benefits. He filed an

application u/s 9 on 16.03.2020. The Learned 'Adjudicating Authority' has

considered the application and dismissed as barred by time.

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3. Learned Counsel submits that the 'cause of action' has accrued only when

there was a denial for payment of the above wages on 09.01.2020 when they

denied to pay the emoluments. Hence, the application was filed well within time

on 16.03.2020. Shri Dutta has also referred to three e.mails which he has filed

and brought on the record (pages 56-58 of the paper book dated 21.11.2019).

He sought to contend that the said e.mails sent on 21.11.2019 and it was duly

replied did not contain a denial and the email was sent that the claim is being

processed.

4. Learned 'Adjudicating Authority' has held that in the application which

was filed by the Applicant he claimed wages for November -December, 2016 and

some other emoluments. In the form part IV of the application, petitioner has

averred the date of default as 31.12.2016. Hence, the application filed on 16th

March, 2020 is beyond time.

5. We have considered the submissions of the Learned Counsel for the

Appellant and have perused the records. The claim of the salary for November

and December, 2016 has been pressed before us. It is submitted that denial

came only in January, 2020 and the time did not start running. We are not

convinced with the submissions made by Shri Dutta. The entitlement of salary

for November became due on 1st December and December salary on the first day

of the next month. When the amount became due, the right to sue accrued to

the Appellant and he could have very well filed the claim within three years from

the said date.

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6. The Appellant's submission that right to sue accrues only when the denial

is received, is not correct. The right to sue is the right which is given to the

plaintiff to enforce his claim in the court of law in accordance with law of

limitation.

7. In so far as the emails are concerned dated 21.11.2019, we have perused

the e-mails. The said emails cannot be read in any manner to give any extension

of limitation to the Appellant.

8. Learned Counsel for the Appellant has relied on the judgement of Hon'ble

Supreme Court in the matter of 'Zee Telefilms Ltd.' Vs. 'Suresh Productions

and Ors.' in Civil Appeal No. 1716/2020 decided on 25.02.2020. He has,

relied on paragraph 17 and submitted that unless the right is threatened, there

is no 'cause of action' to file a suit.

In the above case, Hon'ble Supreme Court held that 'cause of action' to a

Plaintiff to file a suit accrues when there is a clear and unequivocal threat to

infringe a right. The following was laid down in paragraph 17: -

"Cause of action to a Plaintiff to file a

suit accrues when there is a clear and

unequivocal threat to infringe a right. The

Plaintiff having already assigned their right

for a period of 9 years by assignment deed

dated 23.12.1994, there was no cause of

action during the aforesaid period of 9

years. When the Plaintiffs had already Company Appeal (AT) (Ins) No. 1020 of 2021 3 parted with their right of telecasting films on

23.12.1994 there could not have been any

threat to their right in the year 1995. This

Court in Daya Singh and Anr. v. Gurdev

Singh (Deed) by Lrs. And Ors.

MANU/SC/0012/2010 : (2010) 2 SCC 194,

lad laid down that a right to sue accrues

when there is a clear and unequivocal threat

to infringe a right of Plaintiff. In paragraphs

14 and 15 following was laid down:

14. In support of the contention that the

suit was filed within the period of limitation,

the learned Senior Counsel appearing for the

Appellant-Plaintiffs before us submitted that

there could no right to sue until there is an

accrual of the right asserted in the suit and its

infringement or at least a clear and

unequivocal threat to infringe that right by the

Defendant against whom the suit is instituted.

In support of this contention the learned Senior

Counsel strongly relied on a decision of the

Privy Council in Bolo v. Koklan

MANU/PR/0054/1930: AIR 1930 PC 270. In Company Appeal (AT) (Ins) No. 1020 of 2021 4 this decision Their Lordships of the Privy

Council observed as follows (IA p.331)

.....There can be no 'right to sue' until there is

an accrual of the right asserted in the suit and

its infringement, or at least a clear and

unequivocal threat to infringe that right, by the

Defendant against whom the suit is instituted.

15. A similar view was reiterated in

C.Mohammad Yunus v. Syed Unnissa

MANU/SC/0359/1961 : AIR 1961 SC 808, in

which this Court observed: (AIR p.810, para 7)

7.....The period of six years prescribed by

Article 120 has to be computed from the date

when the right to sue accrues and there could

no right to sue until there is an accrual of the

right asserted in the suit and its infringement

or at least a clear and unequivocal threat to

infringe that right.

In C. Mohammad Yunus, this Court held that the

cause of action for the purposes of Article 58 of

the Act accrues only when the right asserted in

the suit is infringed or there is at least a clear Company Appeal (AT) (Ins) No. 1020 of 2021 5 and unequivocal threat to infringe that right.

Therefore, the mere existence of an adverse

entry in the revenue records cannot give rise to

cause of action."

9. The present is not a case of any threat to infringe a right. The present is

a case where there was a clear infringement of right when salary for the month

of November, 2016 not paid in December, 2016. Further, when salary of

December was not paid in the next month, the right was infringed. The

judgement of Hon'ble Supreme Court in 'Zee Telefilms Ltd.' Vs. 'Suresh

Productions and Ors.' Supra does not help the Appellant in the facts of the

present case and is clearly distinguishable.

10. We are of the view that right to sue arose immediately after 31.12.2016

and the application has been filed beyond three years period and has been rightly

rejected by the Learned 'Adjudicating Authority'. Hence, there is no merit in

the Appeal. The appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Justice Jarat Kumar Jain] Member (Judicial)

[Dr. Alok Srivastava] Member (Technical) Shashi/nn

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