Bikki Raveendra Babu, Member - (1.) M/S. RKS Advisors filed this petition under section 9 of The Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "the Code") read with Rule 4 of The Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (hereinafter referred to as "the Rules") seeking reliefs under Section 9 and 13 of the Code.
(2.) The claim of the petitioner is as follows:- M/s. RKS Advisors was engaged as advisor to the respondent company as per consultancy agreement dated 09.12.2011 and scope of services as set forth in the contract were required to be performed solely by Mr. Rajendra Kumar Soni who is proprietor of M/s. RKS Advisors in his representative capacity. Duration of the contract was for a period of 36 months with effect from 9th December 2011. The contract was further extended for a period of one year, till 31st December, 2015. According to the petition, the respondent company was required to pay advisory fees of Rs. 1.00 crore per annum to Mr. Rajendra Kumar Soni inclusive of applicable service tax. During tenure of the contract, petitioner provided requisite services to the satisfaction of the respondent company. On 22.05.2015, Mr. Rajendra Kumar Soni conveyed his desire to terminate the contract with the respondent company. This was on account of the change in management of the company. Resignation of Mr. Rajendra Kumar Soni was accepted by respondent company on 15.06.2015. Petitioner provided three months' notice by way of letter dated 22.06.2015 to terminate the contract as per the terms and conditions contained under clause 9 of the contract, date of termination being 30.09.2015. As per letter dated 22.06.2015, petitioner undertook to vacate the company accommodation before 30.09.2015 occupied by him. Thereafter, Mr. Rajendra Kumar Soni, by way of email intimated the company that the official laptop provided by the company and the petrol card has been returned to the IT and Administration personnel of the company and that the house leased by the company shall be vacated by 01.12.2015. Respondent company by email dated 19.01.2016 intimated the petitioner that an amount of Rs. 46,55,400/- was due to the petitioner. Petitioner again on 14.03.2016 sent a reminder mail to CEO of the respondent company but no response was given to the said email. Petitioner has raised invoice for the months April and May 2016 towards consultancy services provided for production and other related activities. Invoice dated 05.05.2015 which relates to the month April 2015 is for Rs. 8,42,700/-. Invoice dated 31.05.2015 which relates to May 2015 is for Rs. 8,42,700/- and invoice dated 30.06.2015 relates to June 2015 is for Rs. 8,55,000/-. Total amount claimed by the petitioner is Rs. 25,40,400/-. The petitioner also claimed an amount of Rs. 25,65,000/- including service tax of Rs. 3,15,000/- by way of notice period fee. M/s. RKS Advisors and Mr. Soni through their advocates served demand notice dated 06.04.2017 on the respondent company calling upon the respondent company to pay outstanding amount. The respondent company responded to the demand notice by way of letter dated 12.04.2017 styling it as notice of dispute. Again, this was replied by M/s. RKS Advisors on 18.04.2017. According to the petitioner, there is admitted liability on the part of the respondent to pay money to him and inspite demand notice the respondent company has not paid the said amount. According to the petitioner, dispute raised by the respondent is only dispute for the sake of dispute and it is not substantial dispute.
(3.) Respondent filed reply stating that petitioner prematurely terminated the advisory contract vide letter dated 22.05.2015 without serving notice period of three months. Therefore, respondent company claimed Rs. 13,97,260/- being the amount in lieu of short fall in notice period. Respondent also stated that Mr. Rajendra Kumar Soni used residential premises of the respondent company between 1st July, 2015 and 1st March 2016 and in that account the petitioner has to pay Rs. 8,34,918/-. Respondent further stated that the petitioner accepted to pay rent for the house vide email dated 22.06.2015. In reply notice respondent stated that after deduction of TDS for the months April 2015 to June 2016, the amount payable towards professional fee is Rs. 2,22,500/- and after adjusting the amount of Rs. 22,32,178/- which is due to the company and payable by Mr. Soni to the company amounts to Rs. 45,323/- and it was paid by way of cheque No. 103949 dated 05.04.2017 towards full and final settlement of the claim. Respondent in the reply to the notice denied the contents of email dated 19.01.2016 and 20.01.2016. According to the respondent, those emails cannot be considered as acknowledgement of liability. They were sent from the yahoo email id and not from company's email id. According to the respondent Mr. Rajendra Kumar Soni is not entitled to retain accommodation provided to him by the respondent company beyond 30.06.2015. According to the respondent, the reply of Mr. Bhavesh Gandhi dated 02.11.2015 cannot and does not constitute any admission of liability by the company.;