National Company Law Appellate Tribunal | Allowing the appeal as the impugned order is contrary to law, the bench comprising of Rakesh Kumar Jain*, J. and Kanthi Narahari (Technical Member) held that for a debtor to take the plea of pre-existing dispute under S. 8(2) the dispute must relate to the claim made by the operational creditor, mere existence of a dispute is not blanket protection under S. 8(2)(a) of the Insolvency and Bankruptcy Code, 2016 (IBC).

The Appellant in the case was employed by the Respondent for resourcing and recruitment and was terminated on 16-08-2016 while alleging fraud and breach of trust and a FIR No. 0544 was lodged under Ss. 420 and 406 of IPC. The Appellant served a notice under S. 8 IBC and claimed an amount Rs. 33,42,002/- as an Operational Creditor, to which no reply was given by the respondent. The Appellant then filed an application under S. 9 of the code which was dismissed by the Adjudicating Authority (NCLT, Kolkata Bench) owing to the previous dispute because of which the amount claimed by the Appellant cannot be termed as an Operational Debt.

The appellant contended that the salary, flexible pay basket, gratuity, performance bonus and business development bonus claimed by him has nothing to do with the pre-existing dispute. The respondent, while relying on S. 8(2)(a) IBC, contended that the service of the Appellant was terminated because of his fraudulent activities and breach of trust and was disassociated from the activities of the Respondent Company.

The Tribunal observed that a plea of pre-existing dispute must co-relate with the amount claimed by the Operational Creditor and in the present case the Respondent has raised no dispute regarding the salary, flexible pay basket, gratuity, performance bonus and business development bonus till the date of his termination of employment of the Appellant. The Tribunal noted the Appellant has not claimed one month notice pay which as per the employment agreement in case of termination on account of misconduct could not be claimed.

[Aroon Kumar Aggarwal v. ABC Consultants (P) Ltd., 2022 SCC OnLine NCLAT 1614, decided on 01-12-2022]

Advocates who appeared in this case :

Mr. B.R. Sachdeva, Mr. Parvesh Khanna and Mr. Akhilesh Suresh, Counsel for the Appellants;

Ms. Gunjan Mitta, Counsel for the Respondent.

*Ritu Singh, Editorial Assistant has put this report together.

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