Shelendra Kumar Sharma vs Dsc Ltd

Shelendra Kumar Sharma ...Appellant

Vs

DSC Ltd. ...Respondent

Present: For Appellant: Mr. Rajesh Srivastava and Mr. Sumit Kansal, Advocates. For Respondent:

ORDER

16.12.2019: The Appellant, an employee of 'M/s DSC Ltd.', as an

Operational Creditor moved application under Section 9 of the Insolvency and

Bankruptcy Code, 2016 (hereinafter referred to as 'I&B Code') for initiation of

Corporate Insolvency Resolution Process against its employer 'M/s DSC Ltd.'

(Corporate Debtor). The Adjudicating Authority (National Company Law

Tribunal), New Delhi Bench-VI taking into consideration given facts and that the

Applicant has filed his Form 26AS with regard to certain financial years when

the TDS was deposited by the consortium, as opposed to the previous financial

years when TDS was deposited by the Respondent, rejected the application being

not maintainable.

2. Learned counsel appearing on behalf of the Appellant submits that even if

the salary of recent year is taken into consideration, which is more than Rs.1

Lakh, it having not been paid by the Corporate Debtor, the application under

Section 9 was maintainable.

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3. From application under Section 9 filed by the Appellant we find that the

appellant has shown particulars of the claim under following heads - Salary for

the period December, 2014 to March, 2015, which is barred by limitation;

Reimbursement of amount for FY 2014-15 as per SAP Ledger Statement, which

is also barred by limitation; Salary for the period August, 2016 to March, 2017

plus TDS; TDS of certain period; Leave encashment for July, 2013 - March,

2017.

4. However, the Adjudicating Authority noticed that the claim for the period

April, 2016 to March, 2017 do not pertain to the Corporate Debtor - 'M/s DSC

Ltd.' but to M/s DSCL - FENGSHUN-WANAG Consortium' as stated by Appellant

in Form-5.

5. In view of such infirmity, we observe that the application was filed by the

Appellant with an intent to receive the dues from the Corporate Debtor and not

with intention for resolution or liquidation, therefore, we hold that the

Adjudicating Authority rightly rejected the prayer of the Appellant. So far as the

question as to whether the documents are forged or not is concerned, it cannot

be determined by the Adjudicating Authority (National Company Law Tribunal)

or this Appellate Tribunal and therefore, the Adjudicating Authority rightly not

deliberated on such issue.

Company Appeal (AT) (Insolvency) No. 1459 of 2019 -3-

6. In absence of any merit, the appeal is dismissed.

[Justice S. J. Mukhopadhaya] Chairperson

[Justice Bansi Lal Bhat] Member (Judicial)

[Justice Venugopal M.] Member (Judicial) am/gc

Company Appeal (AT) (Insolvency) No. 1459 of 2019