The Hon’ble NCLAT, Principal Bench Delhi examined the issue whether the cyber fraud committed against the Respondent falls within the ambit and canvas of pre-existing dispute in terms of the statutory construct of IBC.
On analysis of the material on record, the Bench opined that the Respondents admitted that they had become a victim of fraud by “an unknown third party”. Further, the complaint was filed against the unknown persons and not the Appellant. Hence, prima facie this could not be treated as a dispute inter se between the parties.
It was further held that Appellant could not have been held responsible in any manner for the payment being made in the wrong bank account. Since, payments were not made in the right bank account, the same could not be said to be discharge of liabilities.
Brief Facts:
The present appeal has been filed against the order of the NCLT vide which Section 9 application under the Insolvency & Bankruptcy Code, 2016 (IBC) filed by the Operational Creditor was rejected.
Contentions of the Appellants:
It was argued despite multiple reminders and admission of liability , the dues owed by the Corporate debtor were not cleared.
It was contended that since the cyber fraud had been committed by a third party, this cannot become the basis of a pre-existing dispute between the Appellant and Respondent.
Contentions of the Respondent:
It was contended that since a cyber fraud was committed, both parties agreed to file a police complaint. Further, that the cyber fraud could not have taken place without the help of the employees of the Appellant and thus the direct involvement of the Appellant could not be ruled out.
Observations of the Tribunal:
The Bench noted that the incidence of cyber fraud was an undisputed fact. The issue was whether the cyber fraud committed against the Respondent falls within the ambit and canvas of pre-existing dispute in terms of the statutory construct of IBC.
On analysis of the material on record, it was observed that the Respondents admitted that they had become a victim of fraud by “an unknown third party”. Further, the complaint was filed against the unknown persons and not the Appellant. Hence, prima facie this could not be treated as a dispute inter se between the parties.
It was further held that Appellant could not have been held responsible in any manner for the payment being made in the wrong bank account. Since, payments were not made in the right bank account, the same could not be said to be discharge of liabilities.
The decision of the Tribunal:
Accordingly, the Bench allowed the appeal.
Case Title: Optinova AB v. Bio-Med Health Care Products Private Ltd.
Case No.: Company Appeal (AT) (Insolvency) No.1359 of 2022
Coram: Justice Ashok Bhushan (Chairperson), Barun Mitra (Technical Member)
Advocates for Appellants Advs. Mr. Aditya Dewan, Mr. Praveen Agarwal, Mr. Tarang Agarwal, Mr. Mrigank Kumar
Advocate for Respondent: Advs. Mr. Nikhil Verma, Mr. M. Agarwal
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