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TMI Blog2021 (12) TMI 962X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, 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 IB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Clause 3 of the Agreement, the term of the Agreement shall be two years from the date of the signature, i.e., from 17.11.2016. As per Clause 3.3 of the Agreement, the payment obligations set forth under Clause 2 of the Agreement shall survive any termination. The Petitioner submits that the Agreement was never terminated. 2.3. According to the Petitioner/Operational Creditor, vide an email dated 23.02.2017, introduced a potential Target Entity viz. Miles Software (Miles/ Target Entity) to Indus. Several communications were exchanged by the Petitioner and the Respondent/ Corporate Debtor between 01.03.2017 and 11.04.2017 where, the Petitioner says, Indus showed interest and inclination in the prospective acquisition of Miles. 2.4. The Petitioner/ Operational Creditor further submits that a non-disclosure agreement (NDA) was entered on 08.03.2017 between Miles and Indus, to disclose certain proprietary and confidential information to one another for the purposes of exploring the business opportunities regarding the potential acquisition of Miles by Indus. 2.5. The Petitioner/ Operational Creditor submits that pursuant to and as required under the terms of the Agreement, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice Tax (GST) at 18% thereon to the Operational Creditor as mentioned in the Agreement. Submissions by the Respondent/ Corporate Debtor 3. The Respondent/ Corporate Debtor submits that the Petitioner M/s Atlanta Global Advisors Pvt Ltd filed the impugned Petition on the basis of some alleged services rendered under the alleged Acquisition Services Agreement dated 17.11.2016, entered into between the Operational Creditor and Indus Software Technologies Pvt Ltd ( Indus ) for the purpose of introducing certain alleged target entitles to Indus. 3.1. According to the Corporate Debtor/ Respondent, Indus executed the Agreement with the Operational Creditor in order to find an entity to acquire. The Operational Creditor undertook to provide qualified acquisition target and assist throughout the acquisition process in exchange for a success fee of 2% of the Enterprise Value or a minimum success fee of US$ 225,000. The Operational Creditor introduced Miles Software (Miles) to Indus for the purpose of acquisition. However, pursuant to independent negotiations, Indus was acquired by Ebix Inc, a USA based Company, and its name was changed to Ebix Technologies Pvt Ltd (Corporate D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . As per the Respondent Debtor, the entire case of Atlanta is dependent on the purported Agreement dated 17.11.2016 with Indus to which Ebix Inc is not a party. Therefore, under no circumstance, Atlanta have any cause of action or locus to seek any reliefs against Ebix or its subsidiaries or its acquired companies on the basis of any such alleged Agreement in any manner whatsoever. 3.8. The Corporate Debtor submits that since existence of any alleged debt itself is in serious dispute, Atlanta cannot be termed as an Operational Creditor within the meaning of Section 5(20 of the Code. FINDINGS 4. CP 3447/2019 has been filed by M/s Atlanta Global Advisors Private Limited, Operational Creditor, u/s 9 of the Insolvency Bankruptcy Code, 2016 against M/s Ebix Technologies Private Limited, the Corporate Debtor for a total amount of about ₹ 4.57 crore which includes interest. 5. As per the Operational Creditor, on 17.06.2016 it had entered into an Acquisition Service Agreement with Indus Software Technology Private Limited for the purpose of introducing certain target entities for Acquisition of Indus for a period of two years, i.e., between 17.11.2016 to 16.11.2018. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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. 10. 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. This Bench is of the view that it is a settled principle of law set out in the judgment of Mobilox Innovations Pvt Ltd Vs Kirusa Software Ltd (2018) 1 SCC 353 passed by the Apex Court, categorically laying down that, A dispute is said to exist, so long as there is a real; dispute as to payment between the parties that would fall within the inclusive definition contained in Section 5 (6) . So long as a dispute truly exists, in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application . 11. 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. 12. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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