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2022 (9) TMI 1166 - AT - Insolvency and BankruptcySeeking contribution to the Corporate Debtor, under Section 66 (2) of IBC, 2016 - fraudulent and knocked off Receivables - Preferential Transactions - fraudulent motive/dishonest intention - diversion of Receivables of the Corporate Debtor - HELD THAT:- It is not in dispute that the Corporate Debtor Insolvency Resolution Process (CIRP) had attained finality and that the Resolution Plan became Functus Officio and he cannot file / pursue any Petition/ Application on behalf of the Company - The ingredients of Section 23 of the Insolvency & Bankruptcy Code, 2016 pertains to the Role of the Resolution Professional to conduct Corporate Insolvency Resolution Process (CIRP) in managing the affairs of the Corporate Debtor during the Resolution Process Period and not at a later point of time. This Tribunal, significantly, points out that, whenever Fraud on a Creditor is perpetrated in the course of carrying on Business, it does not necessarily follow that the Business is being carried on with an Intent to Defraud the Creditor - One cannot remain oblivious of the candid fact that, if the Directors of a Company had acted on a bonafide belief that the Company would recover from its Financial Problems / Difficulties, then, they will not be held liable for the act / offence of Fraudulent Trading. The aspect of Fraudulent Trading requires a very High Degree of proof, which is attached to the Fraudulent Intent. To put it emphatically, a more compelling Material / Evidence is required to satisfy the conscience of this Tribunal, on a preponderance of probability. Apart from that, an isolated/ solo fraud case, against the person, then, action in tort can be resorted to, as opined by this Tribunal. No wonder, a Creditor, who was defrauded, will have recourse to an alternative remedy, under Civil Law. In the instant Case on hand, the Appellant / Applicant before the Adjudicating Authority (National Company Law Tribunal, Division Bench – II, Chennai) had filed application under Section 66 (1) of the Insolvency and Bankruptcy Code, 2016. In this connection, this ‘Tribunal’ significantly points out that in respect of an Application (Filed under Section 66 of the Insolvency and Bankruptcy Code, 2016) Fraudulent Trading / Wrongful Trading, by the Applicant/ Resolution Professional is concerned, Tangible Materials / Relevant Facts are to be pleaded in an Unambiguous and Unequivocal Terms, by supplying the necessary details / facts as the case may be. The averments projected by the Appellant / Applicant in application do not come within the Four Parameters, of the ingredients of Section 66 of the Insolvency and Bankruptcy Code, 2016). Viewed in that perspective, the Impugned Order dated 01.07.2022 in application passed by the Adjudicating Authority (National Company Law Tribunal, Division Bench – II) in dismissing the Application, without Costs, is free from any Legal error. Consequently, the Appeal fails. Application dismissed.
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