Petition for Performance Shares Dismissed: No Debt or Default Found

The Tribunal dismissed the petition, ruling that the Petitioner was not entitled to the Performance Shares, and there was no debt or default by the Respondent. The Tribunal clarified that the decision does not prevent the Petitioner from seeking remedies under alternative laws or forums if appropriate. CP (IB) No. 317/BB/2019 was dismissed without costs.

---

---

Issues Involved:
1. Classification of the Petitioner as an Operational Creditor.
2. Validity of the Demand Notice.
3. Privity of contract between the Petitioner and Respondent.
4. Eligibility for Performance Shares.
5. Jurisdiction of Indian courts.
6. Existence of debt and default.
7. Applicability of full and final settlement.

Issue-wise Detailed Analysis:

1. Classification of the Petitioner as an Operational Creditor:
The Respondent contended that the Petitioner does not qualify as an Operational Creditor under Section 5(20) of the Insolvency and Bankruptcy Code (IBC), 2016. The Tribunal rejected this argument, stating that Performance Shares fall within the meaning of "debt" and "operational debt" as defined in Sections 3(11) and 5(21) of the Code, respectively, because they were to be granted by virtue of employment.

2. Validity of the Demand Notice:
The Respondent argued that the Demand Notice was invalid as it was not served upon the Company but to its CEO/key personnel. The Tribunal found this objection untenable, noting that the notice was served on key managerial personnel of the Company at its official address, fulfilling the requirements under Section 8(2) of the Code.

3. Privity of Contract Between the Petitioner and Respondent:
The Respondent claimed there was no privity of contract regarding the Performance Shares, as they were issued by Essilor International. The Tribunal disagreed, noting that the Petitioner had previously received Performance Shares under the same employment agreement with the Respondent, making the contract valid.

4. Eligibility for Performance Shares:
The Tribunal examined the "Rules of the Performance Share Plan," noting that the Petitioner did not meet the "Presence Condition" required for the final grant of Performance Shares, as he had resigned before the vesting period ended. The Petitioner's argument that he had retired at 58 years was dismissed, as he continued to work under the extended retirement age policy until his resignation in 2018.

5. Jurisdiction of Indian Courts:
The Respondent argued that the dispute should be governed by French law and fall under the jurisdiction of the Commercial Court of Paris. The Tribunal held that the jurisdiction of Indian courts is not ousted by foreign jurisdiction clauses in private contracts, especially in insolvency proceedings aimed at resolution and asset maximization.

6. Existence of Debt and Default:
The Tribunal emphasized that proceedings under Section 9 of the IBC are summary in nature and require a clear and undisputed debt and default. The Tribunal concluded that the Petitioner was ineligible for the Performance Shares, and thus, there was no debt or default on the part of the Respondent.

7. Applicability of Full and Final Settlement:
The Tribunal noted that the Petitioner had accepted the terms of the full and final settlement, which included all salary, perks, and benefits, thereby precluding any further claims. The Tribunal found that the Petitioner was ineligible for the Performance Shares due to non-fulfillment of the "Presence Condition."

Conclusion:
The Tribunal dismissed the petition, concluding that the Petitioner was not eligible for the Performance Shares and there was no debt or default on the part of the Respondent. However, the Tribunal noted that this order does not preclude the Petitioner from pursuing claims under other laws or forums if permissible.

Order:
CP (IB) No. 317/BB/2019 is dismissed with no order as to costs.

---