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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 ..... mpany 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 of an Annexure to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation, 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 have the right or ability to subcontract, delegate, assign or otherwise transfer any rights or obligat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rior 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 purchase agreement dated 03.12.2013 cannot be said to be assignment of master services agreement or performance contemplated thereunder by Agilis to Infog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 63% Ravi Rao 480 80.0 400.0 11,118 32% Harish Kakde 30 5.0 25.0 695 2% Richard Miller 30 5.0 25.0 695 2% Arun Mehta 15 2.5 12.5 347 1% TOTALS 1,500 250.0 1250.0 34,744 100% 18. To be noted, in the aforesaid tabular column, 'company' is 'Agilis', 'parent' is the holding company of Infogix, i.e., 'Infogix Holdings, Inc.,', 'buyer' is 'Infogix' and 'seller' is 'Jaswinder Matharu and four others'. 19. Therefore, it was submitted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to when a triable issue arises. In the instant case, in the light of whether the petitioner in the main company petition is a creditor qua respondent also is a triable issue and it cannot be answered on affidavits and counter affidavits. Therefore, it is made clear that this question is not decided finally one way or the other in this order, but it is held to be a triable issue which is left open to be conclusively decided when the main company petition is tested / tried on merits. To be noted, to this limited extent, parameters and determinants governing Order VII Rule 11 of CPC applications would apply to the instant application. 24. Megasoft would do well to meet the main company petition on merits. It is asserted by learned Senior Advocate for Infogix that discharge of debt to Infogix will be discharge qua Agilis and any document required to buttress this position shall be supplied in the main company petition. This puts to rest the anxiety if any on the part of Megasoft and it also brings about a situation where Megasoft will not be put to any inconvenience, infirmity or prejudice if called upon to meet the main company petition on merits. 25. In the light of the narrative ..... X X X X Extracts X X X X X X X X Extracts X X X X
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