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TMI Blog2019 (8) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... n 31.3.2016 followed by another demand on 17.6.2016. This position is admitted by Megasoft in the application filed in support of the instant application. The effect of stock purchase agreement dated 03.12.2013 cannot be said to be assignment of master services agreement or performance contemplated thereunder by Agilis to Infogix. To be noted, assignment of master services agreement or performance thereunder alone cannot be done without prior written consent of Megasoft. In the instant case, it is a demand made post termination, i.e., demand vide a statutory notice under said Act. Therefore, there are two reasons as to why the argument of Megasoft is unacceptable. One is, clause 7.5 captioned 'Assignment', extracted supra, stood terminated. The second reason is, it is not an assignment of agreement or performance contemplated thereunder. Interpretation of statute - expression 'creditor, by assignment or otherwise', occurring in sub-section (1) Clause (a) of Section 434 of the said Act - HELD THAT:- The term 'creditor' is not a term of art qua said Act. In other words, it is not a term which is defined in the said Act. In Harinagar Sugar Mills Co. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny petition for the sake of convenience and clarity. 2. If a Master Services Agreement dated 18.6.2013 between Agilis and Megasoft is the nucleus of the main company petition, i.e., C.P.No.288 of 2016, a Stock Purchase Agreement dated 03.12.2013 between Agilis and Infogix is the epicentre of this application. This stock purchase agreement can also be described as eye of the storm qua this application. Before I advert to the threefold attack on which this application is predicated and pivoted, it may be necessary to set out.in a thumbnail sketch of factual matrix (sans unnecessary details and particulars) for the purpose of appreciating this order. 3. As mentioned supra, the Master Services Agreement dated 18.6.2013 between Agilis and Megasoft is the nucleus of the main company petition. Megasoft is engaged in the business of software product development, primarily in the Telecom domain. Agilis entered into the aforesaid Master Services Agreement with Megasoft for provision of certain services regarding certain software solutions and the nature of work for which services of Agilis was commissioned under this Master Services Agreement has been set out by way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compass as mentioned supra. 7. Instant application, i.e., C.A.No.331 of 2018 was filed by Megasoft on 14.3.2018 and Infogix has filed counter affidavit dated 19.04.2018 and completed pleadings. 8. Mr.T.V. Sureshkumar of M/s.Genicon Associates (Law Firm) on behalf of Megasoft and Mr.V.Sankaranarayanan, learned Senior Advocate leading the counsel on record for Infogix were before this Court. I heard both sides. 9. Learned counsel for Megasoft referring to the aforesaid master services agreement and particularly to clause 7.5 therein captioned 'Assignment', submitted that Agilis does not have the right to sub contract, delegate, assign or otherwise transfer rights and obligations under the master services agreement without prior written consent of Megasoft and therefore, the aforesaid stock purchase agreement dated 03.12.2013 entered into between Agilis and Infogix does not bind Megasoft. 10. Clause 7.5 of Master Services Agreement captioned 'Assignment' reads as follows : 7.5.Assignment . This Agreement and the performance contemplated hereunder are personal to Contractor and Contractor shall not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmination of master services agreement, all obligations of parties shall cease with the exception of obligations that accrued prior to the effective date of termination which shall survive and Agilis shall deliver all deliverables of Megasoft, besides, Agilis being under obligation to destroy all originals and copies belonging to Megasoft if so directed by Megasoft. After such termination on 15.1.2016, statutory notice inter-alia under Section 434(1) of the said Act was issued on 31.3.2016 followed by another demand on 17.6.2016. This position is admitted by Megasoft in the application filed in support of the instant application. Relevant portion is contained in paragraph 3 and the same reads as follows : 3.I respectfully submit that in the statutory demand notices issued by the respondent petitioner dated 14.01.2016 and on 17.06.2016 to the applicant / respondent herein is on the ground that the Agilis International Inc is a merged entity of Infogix Inc in pursuance of the stock purchase agreements entered between the respondent corporation and the said merged former entity namely M/s.Agilis International Inc..... 13. Therefore, the effect of stock purc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement dated 03.12.2013 certainly qualifies and neatly / snugly fits into the expression 'otherwise' occurring in Section 434(1)(a) of the said Act. 16. This takes us to the last point projected before me, i.e., Agilis is alive. 17. Referring to this argument, Mr.V.Sankaranarayanan, learned Senior Advocate drew my attention to the stock purchase agreement and submitted that it is not a case of merger or amalgamation simplicitor. It is a case where five individuals, who originally held the entire shares in Agilis, have sold the same and he drew my attention to Schedule 1.1 of Stock Purchase agreement which reads as follows : Seller Company securities Company securities purchased by parent Company securities purchased by buyer Parent shares to be issued to seller Pro rata percentage Jaswinder Matharu 945 157.5 787.5 21,889 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having already held that Harinagar Sugar Mills Co. Ltd. case principle will apply, it is not necessary to delve into these two case laws. 22. Another Calcutta High Court judgment in Angelo Brothers Ltd. Vs. Bennett, Coleman and Co. Ltd. reported in (2017) 203 Comp Cas 180 (Cal) was pressed into service by learned Senior counsel Mr.Sankara Narayanan for the proposition that principles governing an application under Order VII Rule 11 of 'The Code of Civil Procedure, 1908' ('CPC' for brevity) would apply to the instant application as it is an application seeking dismissal of the main company petition on a preliminary / maintainability point. A perusal of Angelo Brothers case brings to light that as far as applications which seek dismissal of a company petition on a preliminary / maintainability point are concerned, the same should be tested on a demurrer. After saying so, it has been held that the term 'demurrer' in Indian context has been construed to have a connotation which is wider than the dictionary meaning and applications of instant nature have to be tested on a demurrer. 23. To put it differently, what follows as sequittur is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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