2025 (5) TMI 1031 - AT - IBC

Liability of Parent company to pay the dues of subsidiary company - Maintainability of application under Section 9 of IBC - contract of service - absence of privity of contract between the parties - HELD THAT - It has come on record from the voluminous evidence that service of Respondent No. 1 were availed by Sapura Malaysia (Holding company as a buyer) and that invoices by Respondent No. 1 were also raised upon Sapura Malaysia. It is also not in dispute that at the first instance Respondent No. 1 tried to file application under Section 9 against the Sapura Malaysia but due to some technical default on the part of the Respondent No. 1 the said application was not registered by the Tribunal. Thereafter the Respondent No. 1 file the application against the Appellant (Subsidiary) of its holding company namely Sapura Malaysia in which the stand taken by the Appellant throughout is that it has no privity of contract with Respondent No. 1 therefore it has no liability against it for discharging its debt. The Tribunal has though noted the aforesaid clearly but held that privity of contract between the Appellant and Respondent No. 1 exist because one Paresh Naik employee of the Appellant had digitally signed the documents. It has been brought on record by the Appellant that Paresh Naik was instructed by Sapura Malaysia to work on its behalf for the purpose of signing bill of lading and service orders etc. therefore it could not be made the sole ground for establishing the relationship between the Appellant and Respondent No. 1 of the buyer and the seller to allow the application filed under Section 9 and pushing the Appellant in the CIRP. In the case of SARE Public Company Ltd. 2020 (1) TMI 1558 - DELHI HIGH COURT the Delhi High Court had held that clearly the settled legal position is that the holding company and the wholly owned subsidiary are two distinct legal entities. The holding company does not own the assets of the subsidiary. Conclusion - The Appellant is a separate legal entity who has no privity of contract with Respondent No. 1 and is thus not liable to discharge the debt of its holding company i.e. Sapura Malaysia. The present appeal is thus found to be meritorious and hence allowed.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal question considered in this appeal is whether an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (IBC) filed by an Operational Creditor against a subsidiary company (Appellant) can be maintained when the contract for the supply of goods and services and the related invoices are exclusively between the Operational Creditor and the holding company of the subsidiary, with no privity of contract existing between the Operational Creditor and the subsidiary itself.

In essence, the Tribunal examined whether the subsidiary can be held liable for the operational debt of its wholly owned holding company in the absence of a direct contractual relationship, and whether the alleged digital signing of certain documents by an employee of the subsidiary on behalf of the holding company establishes privity of contract sufficient to sustain the Section 9 application.

2. ISSUE-WISE DETAILED ANALYSIS

Issue: Maintainability of Section 9 application against the subsidiary company in absence of privity of contract.

Relevant Legal Framework and Precedents: The Insolvency and Bankruptcy Code, 2016 governs the initiation of Corporate Insolvency Resolution Process (CIRP) under Section 9 by an Operational Creditor on the basis of an operational debt arising from a contract between the Operational Creditor and the Corporate Debtor. The principle of separate legal entity under company law is well established, whereby a holding company and its wholly owned subsidiary are distinct legal persons. The Supreme Court in Vodafone International Holding BV v. Union of India (2012) 6 SCC 613 held that a holding company does not own the assets of its subsidiary and the management of the subsidiary is vested in its own board of directors. Similarly, the Delhi High Court in SARE Public Company Ltd. v. Avon Infracon Pvt. Ltd. reaffirmed this distinction.

In the context of IBC proceedings, the Operational Creditor must establish a contractual relationship with the Corporate Debtor to maintain a claim under Section 9, as reiterated in the appellate decision relied upon by the Appellant (Mr. Harrish Khurana v. M/s One World Realtech Pvt. Ltd.).

Court's Interpretation and Reasoning: The Tribunal initially admitted the Section 9 petition against the subsidiary, relying on the fact that an employee of the subsidiary, Paresh Naik, had digitally signed the bill of lading and service orders related to the holding company's transactions with the Operational Creditor. The Tribunal inferred that this constituted privity of contract between the subsidiary and the Operational Creditor.

However, upon appeal, the Appellate Tribunal analyzed the nature of the contractual relationship and the legal status of the entities. It was noted that the service orders were placed by the holding company, Sapura Malaysia, and the invoices were raised exclusively to it. The subsidiary had no direct contractual engagement with the Operational Creditor. The Appellate Tribunal emphasized that the digital signature of the subsidiary's employee was made on behalf of the holding company under instruction, and thus could not be construed as creating a contractual relationship between the subsidiary and the Operational Creditor.

The Appellate Tribunal further underscored the principle of separate legal entity, referencing the Supreme Court's Vodafone decision and the Delhi High Court's SARE decision, which clearly establish that a holding company and its wholly owned subsidiary are distinct legal persons. The holding company's liabilities cannot be imposed on the subsidiary without explicit contractual or legal basis.

Key Evidence and Findings: It was undisputed that the Operational Creditor initially attempted to file a Section 9 application against the holding company, Sapura Malaysia, but the application was not registered due to the absence of the holding company's Corporate Identification Number (CIN). Subsequently, the Operational Creditor issued a demand notice and filed the Section 9 application against the subsidiary, despite the absence of any contractual nexus.

The Appellant demonstrated that the employee who signed the documents did so on instructions from the holding company and that the service orders and invoices explicitly designated Sapura Malaysia as the buyer and consignee. The governing law clause specified Malaysian law and arbitration at Kuala Lumpur, further confirming the contractual relationship with the holding company.

Application of Law to Facts: The Appellate Tribunal applied the principle of separate legal personality to the facts, concluding that the subsidiary cannot be held liable for the debts of its holding company in the absence of privity of contract. The mere signing of documents by an employee of the subsidiary on behalf of the holding company does not create a contractual relationship between the subsidiary and the Operational Creditor.

The Tribunal's reliance on the digital signature as proof of privity was rejected as insufficient. The Appellate Tribunal held that the Operational Creditor's attempt to recover dues through CIRP against the subsidiary was misplaced and not sustainable under the IBC framework.

Treatment of Competing Arguments: The Operational Creditor argued that the subsidiary was part of the buyer group and that the employee's signature amounted to an admission of debt on behalf of the holding company, thereby justifying the application against the subsidiary. It was also contended that the subsidiary and holding company were group companies and thus liable.

The Appellate Tribunal rejected these contentions, holding that group affiliation does not equate to contractual liability. The legal distinction between holding company and subsidiary was emphasized, and the absence of a direct contract with the subsidiary was decisive. The Tribunal also noted that the Operational Creditor's initial failure to file the application against the holding company due to a technical defect could not be circumvented by filing against the subsidiary.

3. SIGNIFICANT HOLDINGS

The Appellate Tribunal held: "The legal relationship between a holding company and wholly owned subsidiary is that they are two distinct legal persons and the holding company does not own the assets of the subsidiary and, in law, the management of the business of the subsidiary also vests in its Board of Directors."

It further observed: "The mere fact that an employee of the subsidiary digitally signed the bill of lading and service orders on behalf of the holding company cannot be the sole ground for establishing privity of contract between the subsidiary and the Operational Creditor."

The Tribunal concluded: "In view of the aforesaid facts and circumstances, it is clearly established that the Appellant is a separate legal entity who has no privity of contract with Respondent No. 1 and is thus not liable to discharge the debt of its holding company."

The final determination was that the Section 9 application filed against the subsidiary was not maintainable and the impugned order admitting the application and appointing the Interim Resolution Professional was set aside.