2021 (12) TMI 962 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT - This Bench notes that on 18.07.2018 a Letter of Intent was entered into by Ebix Inc with Miles expressing its intention to acquire 100% shareholding of Miles. Around the same time, Ebix Inc entered into a discussion with Indus Software Technology Pvt Ltd (Indus) with the intention of Ebix Inc acquiring Indus to expand their operations in India. The Ebix Inc acquired Indus on 20.07.2018 and thereafter changed its name on 23.10.2018 from Indus to Ebix Technologies Pvt Ltd after appropriate filing and approval from the RoC. It is, therefore, clear to the Bench that for acquisition of Miles by Ebix Inc on 18.07.2018 was prior to and around the same time the acquisition of Ebix Inc of Indus on 20.07.2018. Therefore, this Bench is of the view that in the acquisition of Miles by Ebix Technologies Pvt Ltd, there was no contribution of Indus and, therefore, no role for Atlanta Global Advisors Private Ltd in the acquisition of Miles. The Letter of Intent undertaken by Ebix Inc and shareholders of Mile was signed before acquisition of Indus by Ebix Inc. The Bench in this regard also notes that all negotiations with respect to acquisition of Miles were undertaken by Ebix Inc by its office in USA and not in any manner through Indus. Therefore, this Bench is of the view that the acquisition of Miles were undertaken not by Indus but independently by Ebix Inc. - The entire case of Atlanta is based on the Agreement dated 17.11.2016 with Indus to which Ebix Inc is not a party. Therefore, under no circumstance Atlanta has any cause of action or locus to seek any relief against Ebix Inc and its subsidiaries or its acquired Companies This Bench also notes that demand notice was issued by the Petitioner in Form 3 on 03.04.2019. The Respondent, on 16.04.2019 had sent a detailed reply rejecting the claims after giving due reasons for the same - the Bench is of the view that there are very pertinent and real disputes regarding the claims etc, therefore, the Petition, in addition to other things, deserves dismissal under Section 9 of the IBC, 2016. Petition dismissed.

Summary

Issues:
1. Initiation of Corporate Insolvency Resolution Process (CIRP) for outstanding Success Fee amount.
2. Interpretation of the terms of the Acquisition Service Agreement.
3. Dispute regarding the payment obligations under the Agreement.
4. Privity of contract and operational debt between the parties.
5. Validity of the demand notice and rejection of claims.

Analysis:
1. The application was filed to initiate CIRP against the Corporate Debtor for an outstanding Success Fee amount of INR 4,57,54,500. The Operational Creditor claimed that the Corporate Debtor acquired Indus and subsequently Miles, fulfilling the acquisition transaction envisaged under the Agreement.
2. The terms of the Acquisition Service Agreement specified a Success Fee of 2% of the Enterprise Value of each transaction, with a minimum fee. The Operational Creditor introduced Miles to Indus and claimed that the subsequent acquisition of Miles by the Corporate Debtor fulfilled the Agreement terms.
3. The Operational Creditor maintained that the Agreement was never terminated, and the Corporate Debtor was legally obliged to pay the Success Fee. However, the Corporate Debtor argued that no services were provided by the Operational Creditor for the acquisition of Miles and disputed the existence of any debt.
4. The Corporate Debtor contended that there was no privity of contract between them and the Operational Creditor, emphasizing that negotiations for the acquisition of Miles were independent and not facilitated by the Operational Creditor.
5. The Bench noted that a dispute existed regarding the payment claims, citing a legal precedent. Due to the real disputes and lack of privity between the parties, the application was dismissed under Section 9 of the IBC, 2016.

Overall, the judgment focused on the lack of involvement of the Operational Creditor in the acquisition process of Miles by the Corporate Debtor, leading to the dismissal of the application for insolvency resolution. The analysis highlighted the key arguments, interpretations of the Agreement terms, and the legal principles applied in reaching the decision.