Per: Ms. Madhu Sinha, Member (Technical)

1. This Company Petition is filed by M/s KIMIKA GMPSOL PVT.LTD. (hereinafter called “Operational Creditor”) seeking to set in motion the Corporate Insolvency Resolution Process (CIRP) against Vital Laboratories Pvt. Ltd. (hereinafter called “Corporate Debtor”) by invoking the provisions of Section 9 of Insolvency and Bankruptcy Code, 2016 (hereinafter called “Code”) read with Rule 6 of Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016 for resolution of an unresolved “Operational Debt” of Rs. 1,12,18,968/- (Rupees One Crore Twelve Lakhs Eighteen Thousand Only).

2. The brief submissions of the Operational Creditor are as follows:

a. In the year 2008, Dr. Anil Balkrishna Ghogare, was appointed as a consultant of Vital Laboratories Pvt. Ltd. (“Corporate Debtor”). Dr. Ghogare was later inducted as a director on the board of directors of the Corporate Debtor in 2014.

b. The Operational Creditor was incorporated in 2018 by Dr. Ghogare and his family members inter alia to promote and continue the family’s consultancy services. Since incorporation of the Operational Creditor, the arrangement between Dr. Ghogare and the Corporate Debtor was that consultancy fees would be paid in some proportions to the Operational Creditor as Dr. Ghogare would often provide his services to the Corporate Debtor through the Operational Creditor. This arrangement is buttressed by the fact that the Operational Creditor has raised invoices on the Corporate Debtor from time to time and the same have been paid by the Corporate Debtor without any objection or dispute. As per this agreement and arrangement between parties, the Operational Creditor was raising invoices in the sum of Rs.6,25,000/- + GST per month since January, 2020.

c. These terms of payment by the Corporate Debtor to the Operational Creditor were later recorded in a separate consultancy agreement dated 3^rd September, 2021 entered into between the Corporate Debtor and the Operational Creditor which was expressly stated to be effective from 1^st January, 2021. While the terms regarding confidentiality and exclusivity are disputed, the consultancy fee of Rs.6,25,000/- + GST is correctly captured in the said Consultancy Agreement.

d. On 20th November 2020, in accordance with the terms of his employment contract, Dr. Ghogare submitted his resignation to the Corporate Debtor. At this time, many of Dr. Ghogare’s invoices as well as invoices raised by the Operational Creditor were outstanding. The Corporate Debtor however refused to accept Dr. Ghogare’s resignation and instead, undertook to clear all invoices raised by Dr. Ghogare and by the Operational Creditor by 31 March 2021.

e. On 6 March 2021, upon instructions of the Corporate Debtor and pursuant to the agreement and arrangement between parties, the Operational Creditor raised an invoice of Rs.57,57,600/- on the Corporate Debtor in respect of past dues and in particular, outstanding performance bonus. The invoice was raised by the Operational Creditor as the arrangement and agreement between parties was that the amounts towards such performance bonus would be paid by the Corporate Debtor to the Operational Creditor. These were therefore dues payable to the Operational Creditor as per the arrangement and agreement between the parties and could therefore only be recovered by the Operational Creditor. The Corporate Debtor however did not make any payment against the said invoice.

f. By its Email dated 15^th May, 2021, whilst acknowledging receipt of the said invoice dated 6th March 2021 raised by the Operational Creditor, the Corporate Debtor requested the Operational Creditor to revise the amount of fees charged in the invoice from Rs.57,57,600/- to Rs.54,20,715/- on the ground that the amount charged was not proportional to the annual turnover of the Corporate Debtor for the relevant years and that only an amount of Rs.54,20,715/- was actually due and payable by it. The said request for dedu