ECLI:NL:RBAMS:2025:2811

Uitspraak

judgment

AMSTERDAM DISTRICT COURT

Netherlands Commercial Court

NCC District Court

Case number: C/13/758113

Judgment

9 April 2025

Claimants (main proceedings and the motion)

1.
COMVIVA TECHNOLOGIES LIMITED, incorporated under the laws of India

2.
[eiser 2]

3.
[eiser 3]

4.
[eiser 4]

5.
[eiser 5]

6.
[eiser 6]

7.
[eiser 7]

Claimants 1-7 based in [plaats 1] , India

8.
[eiser 8][plaats 2] , United States of America

represented by E.M. Tjon-En-Fa, L. Grijpma and W. Kroeze, lawyers

and

Defendants

1.
TERRA PAYMENT SERVICES (NETHERLANDS) B.V.

Amsterdam, the Netherlands

2.
TERRAPAY HOLDINGS LIMITED, incorporated under the laws of England

Cardiff, Wales, United Kingdom

3.
STICHTING TPS ESOP 2

The Hague, the Netherlands

represented by E.R. Meerdink, E.C.L. van de Langerijt, F.R.C. Olsman and M. Veljkovic, lawyers

List of terms for the parties

Claimant 1 Comviva

Claimants 2-8 the Participants
Claimants 2-7 the Indian Participants
Claimant 8 the US Participant

Comviva and the Participants, collectively the Claimants

Defendant 1 TPN
Defendant 2 TPUK
Defendant 3 the Foundation

TPN, TPUK and the Foundation, collectively TerraPay.

1.Procedural history

1.1.

The Claimants submitted a writ of summons and a motion for disclosure of documents. The parties unanimously requested and the Court directed that the motion be dealt with first. The Defendants submitted a defence to the motion.

1.2.

The parties agreed that further written submissions were appropriate instead of a hearing on the motion, and the Court so directed. The Claimants submitted a statement of reply, the Defendants submitted a statement of rejoinder, the parties agreed there was no need for a hearing, and the Court directed that judgment be set for today.

1.3.

The case was assigned to a multi-judge chamber under the NCC Rules. The multi-judge chamber referred the matter to a single-judge chamber (Judge Frakes) for purposes of dealing with the motion. Today’s judgment will deal only with the motion.

2.Background

2.1.

Comviva is a global leader in mobile solutions, offering mobile finance and customer management solutions for telecom operators, and focusing on retail/consumers. Comviva is based in India and is part of the Tech Mahindra Group.

2.2.

TPN was incorporated in 2015 by Comviva, and Comviva was the sole shareholder. TPN and its subsidiaries, the “TerraPay Group”, provided global financial services, with India being one of its largest markets.

2.3.

Comviva decided to divest its TPN shares. Before divestment, approval by the Reserve Bank of India (“RBI”) was required. Comviva sought such approval and the RBI issued “in principle approval” on 25 September 2019. Comviva divested its TPN shares to a consortium of global investors.

2.4.

The Participants are a group of current and former Comviva employees. The Participants wanted to invest in TPN. Comviva and the global consortium (the new investors in TPN) allowed the Participants to acquire share certificates in respect of TPN shares.^[1]To this end, an Employee Stock Option Program was created: “ESOP 2” (5% of TPN shares, for the benefit of the Participants). A separate program, “ESOP 1”, was also created, for 20% of TPN shares, for the benefit of TerraPay management. The arrangements also included a “Bonus Pay-Out” by participants in ESOP 1 to Comviva in certain circumstances (generally, in the event of an exit).

2.5.

On 30 October 2019, the Foundation was incorporated to execute ESOP 2, focusing on the 5% of TPN shares allocated to ESOP 2 (for the benefit of the Participants). On 2 December 2019, Comviva (acting in its capacity as TPN shareholder) resolved that TPN issue 134,187 new shares to the Foundation. On Comviva’s instructions, TPN sent grant letters to the Participants, confirming the granting of their share certificates (the “TPN Share Certificates”).^[2]The Participants paid the Acquisition Price to TPN, as required under the relevant terms.^[3]

2.6.

Throughout this process, the parties understood that compliance with the laws of India was important since Claimants 1-7 were and are domiciled in India, and India has specific laws that govern foreign financial investments by residents of India, such as Claimants 1-7.

2.7.

In 2021, TPN sought additional comfort from the Participants in a “Compliance Clause” in a “Participation Agreement”, dated 21 June 2021, which expresses the parties’ acknowledgement of the Participants’ compliance with the rules referred to at 2.6 above on foreign financial investments. The parties agreed on the following wording of the Compliance Clause:

“The Participant hereby represents and confirms that it has obtained all necessary approvals/permissions/authorizations to become eligible to acquire the Share Certificate as aforementioned. Further, by so doing, the Participant hereby undertakes to indemnify the Foundation, the Company, and their officers, directors and employees from (i) any regulatory/enforcement actions arising from the Participant acquiring the Share Certificates and (ii) or any damages incurred by the Foundation, Company, and their officers, directors and employees as a result of the Participant being ineligible or in breach of any law/rules/regulations to be fulfilled before or in connection with acquiring the Share Certificates. (…) Notwithstanding anything contained otherwise, the Participant acknowledges that if the Participant is found ineligible or in breach of any law/rules/regulations to be fulfilled before or in connection with acquiring the Share Certificates, or in case a competent authority, by its order, rules that the Participant is found ineligible or in breach of any law/rules/regulations to be fulfilled before or in connection with acquiring and/or holding the Share Certificates, the Foundation shall have the right to cancel (royeren) the Share Certificates with immediate effect, irrespective of whether the order of the authority can be appealed. (…).”

2.8.

In June 2021, the Foundation issued a letter on TerraPay’s letterhead confirming that the Foundation holds the respective TPN Shares for the Participants (the “Share Certificate Letter”). The letter states that the allotment is subject to two documents:

the Participation Agreement, including the Conditions of Administration (“COA”), as amended on 17 December 2020
the Foundation’s Deed of Incorporation.

2.9.

On 24 June 2022, TerraPay redomiciled from the Netherlands to the United Kingdom (the “Redomiciliation”). The Redomiciliation was a corporate restructuring (the “Restructuring”) in which the incumbent TPN shareholders, including the Foundation, sold and transferred their TPN shares to TPUK, a newly incorporated holding entity, in exchange for TPUK shares (each shareholder retaining the same percentage of shares). This transaction made TPUK the sole TPN shareholder and the highest holding company in the TerraPay Group. Obviously, it also made the Foundation a TPUK shareholder, and it suggested that, essentially as an administrative matter recording the Restructuring, the Participants would need to be issued share certificates relating to TPUK shares.

2.10.

Shortly after the Restructuring, TerraPay announced that it had attracted new investors, who invested USD 125 million in TerraPay.

2.11.

TerraPay sent the Participants a letter, explaining the Redomiciliation and the Restructuring, on 27 June 2022. TerraPay was advised, in an opinion by Khaitan & Co (lawyers in India), that the Indian Participants required specific RBI approval in order for them to acquire share certificates relating to TPUK shares. On this basis, TerraPay asked the Indian Participants for proof of RBI approval. The Participants responded that further RBI approval was not required, and the Participants provided an opinion by BSR & Co LLP (“BSR”, a KPMG affiliate in India), and a separate opinion by JSA Law (“JSA”), to that effect.

2.12.

On 17 March 2023, TerraPay sent a notice to the Indian Participants (the “Implementation Notice”), which stated that:

“(…) with reference to article 4 of the Participation Agreement, we hereby inform you that:

(i) you will not be issued any share certificates in respect of TerraPay Holding Limited (UK) [the Court: TPUK];

(ii) for the avoidance of doubt, any share certificates issued to you by Stichting TPS ESOP 2 [the Court: the Foundation], (to the extent still existing), as well as any other similar rights, are hereby rescinded (
geroyeerd); and

(iii) we will refund the Acquisition Price, minus any fees and expenses in relation to such payment, to the account from which you have made the original remittance.

(…).”

2.13.

The Indian Participants contested the Implementation Notice in various letters to TerraPay. TerraPay refunded the Acquisition Price as indicated in the Implementation Notice.

2.14.

The Foundation confirmed that the US Participant was allotted TPUK share certificates.

3.The claims in the main proceedings

3.1.

Although this judgment deals only with the motion, the claims in the main proceedings are summarised here, as the motion seeks documents that bear on these claims.

3.2.

In the main proceedings, the Claimants essentially seek relief along the lines below (claims I-III focus on the motion, and the numbering in the main proceedings starts at IV).

First, the Claimants focus on the share transfer and seek:

IV a declaration of law that the transfer of TPN shares from the Foundation to TPUK is invalid, and

V an order to amend the shareholders’ register to reflect the invalid transfer (the Foundation being ordered to instruct a civil law notary accordingly, and proof being provided to the Claimants)

If this first group of claims is not granted, the Claimants present, in the alternative, a second group of claims:

VI a declaration of law that the Foundation breached contractual obligations owed to the Participants and is liable for resulting harm,

VII a declaration of law that TPN’s, TPUK’s and/or the Foundation’s actions constitute torts in respect of Claimants 1-7 or unjust enrichment to their detriment, causing joint and several liability for resulting harm,

VIII an order for the Foundation to transfer the respective TPUK shares to each of the respective Indian Participants,

or, in the alternative,

an order for the Foundation to issue share certificates, relating to the respective TPUK shares, to each of the respective Indian Participants (subject to the same terms as the COA, and no remittance being due)

or, in the alternative,

an order for TPN, TPUK and the Foundation to jointly and severally compensate the Indian Participants for the value of the TPN Share Certificates held by them prior to the Restructuring and/or rescission of the TPN Share Certificates, plus loss equal to future increases in value.

If this second group of claims is not granted, the Claimants present a third group of claims along these lines:

IX-X an order for TPN, TPUK and the Foundation, jointly and severally, to pay Comviva USD 382,578 (ESOP 2) and USD 1.911 million (ESOP 1).

Lastly, the Claimants refer to full compensation for their legal fees and other costs in relation to the Restructuring and to obtain redress (claim XI; expert costs, statutory interest, out-of-court costs, costs of the proceedings).

3.3.

The Claimants’ substantiation of these claims is essentially two main points:

 Under Articles 4(7) and 4(9) of the Foundation’s Articles of Association, dated 2 March 2020, a share transfer to anyone not a party to the Subscription and Shareholders’ Agreement (“SSA”) is null and void. The Claimants expressed doubts as to whether TPUK was a party to the SSA prior to the transfer of TPN shares to TPUK. If this transfer were null and void, the conclusion would be that the Foundation still holds 5% of TPN shares for the Participants (these shares never transferring to TPUK).

 The Claimants also doubt the Foundation had the authority to transfer the TPN shares to TPUK (“authority” meaning “
beschikkingsbevoegdheid” here). This authority exists only where so agreed by the Participants and the Foundation, and no such agreement was ever made. The COA expressly limited the Foundation’s authority to certain circumstances, one of which is defined as an “Exit” in Article 15 COA (an Exit being essentially a sale of the entire business to investors). No Exit has occurred, the share transfer not being within the scope of the definition. This invalidates the share transfer to TPUK.

4.The motion

4.1.

Claimants’ demand in their motion is that the Court issue two orders:

an order for TPN, TPUK and the Foundation to disclose the documents set out under paragraphs 6.1-6.2 of the writ of summons (see below),
an order for the Foundation to disclose to the US Participant the documents set out in paragraph 6.3 of the writ of summons (see below),

both orders subject to a penalty in the event of non-compliance.

4.2.

Paragraph 6.1 concerns the Indian Participants and refers to these documents (“Claim 6.1”):

a true copy of the SSA, dated 18 September 2019, entered into by TPN and its shareholders, including the Foundation, and any subsequent amendments, demonstrating the parties to the SSA, as well as documentation about the status of the SSA, including whether the SSA was still in force (and if not, evidence of the termination of the SSA) at the time of the Share Swap,
a true copy of the deed of transfer (“

4.3.

Paragraph 6.2 concerns all Participants and refers to these documents (“Claim 6.2”):

 all documents relating to the valuation of the Shares, such as a valuation report, which documents were the basis for the New Investments after the Restructuring.

4.4.

Paragraph 6.3 concerns the US Participant and refers to these documents (“Claim 6.3”):

an extract from the register of participants,
a copy of any other document that substantiates or otherwise relates to the US Participant’s TPUK share certificates, including without limitation (i) the deed of issuance of the share certificates, and (ii) a share certificate issued by TPUK.

5.Discussion

NCC jurisdiction/authority and applicable law

5.1.

Before turning to the motion at hand, the Court first considers, on its own initiative, whether the requirements for the Court’s jurisdiction and authority have been met (Article 1.3.4 of the NCC Rules of Procedure (NCCR)) and what the applicable law is.

5.2.

As to jurisdiction, the parties agreed to bring this dispute before the NCC (Exhibits C-37, C-38 and C-39). This means that the Amsterdam District Court has jurisdiction under Article 25(1) of Regulation (EU) No 1215/2012.

5.3.

As to the NCC’s authority, the parties also agreed for the NCC to deal with the matter and for English to be the language of the case, giving the Court authority. All other requirements for the NCC to deal with the case are also met here (Article 1.3.1 NCCR).

5.4.

The Court observes it is not in dispute that the relevant agreements, such as the SSA and the COA, have a choice-of-law clause and are subject to Dutch law. As to the alleged torts, the transfer of shares was recorded in a Dutch civil law notary’s deed, so that the tort, as alleged, occurred in the Netherlands and Dutch law applies under Article 4 of the Rome II Regulation (the parties presented no other analysis). For these reasons, the Court will apply Dutch law.

It is appropriate to deal with the “Compliance Issue” first, so that the motion is premature at this stage (Claims 6.1 and 6.2)

5.5.

The Court outlines the parties’ main arguments here to set the stage for the discussion on the motion.

 What the Indian Participants essentially want to achieve is to acquire TPUK shares or TPUK share certificates, or to be compensated for the full value of certificates (the value prior to Restructuring/rescission, plus the anticipated future upside). To that end, they rely on the invalidity of the share transfer to TPUK (to argue they still have TPN Share Certificates). That is the reason they want documents on the share transfer.

 TerraPay’s defence is that the “Compliance Issue” is the real heart of the matter. To explain this defence, TerraPay argues that the Indian Participants were not in compliance with applicable rules and were therefore not allowed to invest in either TPN or TPUK. In TerraPay’s view, these rules include the (Indian) Foreign Exchange Management Act (“FEMA”) and the Liberalized Remittance Scheme (“LRS”), which govern overseas investments by residents of India in the financial services sector. To move to compliance, TerraPay wrote, the Indian Participants must obtain RBI approval, and since they have not done so, the Foundation was within its rights to withhold TPUK share certificates and to rescind TPN Share Certificates previously issued. TerraPay also submitted the standard defendant’s analysis under Article 843a DCCP: legal relationship not sufficiently plausible, no legitimate interest, and compelling reasons not to disclose.

 The Claimants’ response to the Compliance Issue is that no further approval, in addition to the approval in 2019, is needed because their authorised dealer bank so determined at their request before they remitted the Acquisition Price and again in response to TerraPay’s requests for further approval. The Claimants explained that no approval request can be submitted except through an authorised dealer bank, and no bank will submit such a request except in connection with a remittance requested by a customer.

5.6.

The Court agrees with TerraPay that the analysis must first focus on the Compliance Clause and whether TerraPay’s reliance on it is successful. The Court’s preliminary observation at this stage of the proceedings is that the Indian Participants want shares, certificates or cash, and there are two potential outcomes: the Indian Participants are non-compliant or they are compliant.

If they are non-compliant, at this stage it seems clear that they cannot have shares, certificates or cash (except perhaps the Bonus Pay-Out), because:
- they agreed that compliance was a prerequisite to their investment

- at this stage nothing is in the record to suggest the agreement should not be enforced as written, or the Claimants were harmed by the sole fact of a transfer from a Netherlands entity to a UK entity at a particular time.

Accordingly, if there is an adverse outcome of the analysis on the Compliance Issue, that may be dispositive, requiring denial of the claims in the main proceedings. In these circumstances, TerraPay’s defence may be successful, denying the request to issue TPUK share certificates, and rescinding TPN Share Certificates. All of this would, at this early stage, appear to apply even if the Restructuring and the share transfer to TPUK were to be held invalid – in those circumstances, the Foundation would be authorised to immediately rescind, for reasons of non-compliance, any TPN Share Certificates held for the Claimants so that, in this scenario and at this stage, it is hard for the Court to see any legitimate reason for the Claimants to explore documentation on the Restructuring and the share transfer to TPUK.

If, however, the Indian Participants are compliant, at this stage it seems clear that they must have shares, certificates or cash, one way or another: relief was demanded here, and in this scenario, the Court may make appropriate orders along the lines of one or more of the claims in the main proceedings. Again, this would seem to apply even if the Restructuring and the share transfer to TPUK were to be held invalid: in those circumstances, appropriate relief would be ordered along the lines of one or more of the claims in the main proceedings, and the Indian Participants would have shares, certificates or cash.

To be clear, as the Court understands the claims at this early stage, the Claimants do not seek disclosure solely to ascertain whether any rules were broken in the Redomiciliation/Restructuring process (for example, to address and resolve any issues so that the business will not run into trouble in the future), and there is nothing in the record to suggest they were harmed solely by a transfer from a Netherlands entity to a UK entity. Instead, their sole aim is apparently to get shares, certificates or cash. That is why the Compliance Issue may be the decisive point in the analysis, one way or the other.

For these reasons, to simplify and expedite the proceedings, the Court will first address the Compliance Clause in the main proceedings. Accordingly, at this stage the motion for disclosure lacks sufficient interest. However, there may be a sufficient interest on certain points at a later stage, and the Court will therefore reserve its decision on the motion. For obvious reasons, the Court does not express a view at this stage on the Khaitan, BSR and JSA opinions, referred to above at 2.11, but observes here that these opinions may be an important part of the analysis on the merits of the Compliance Issue.

5.7.

Three other points confirm the conclusions of the above analysis.

The first point focuses on what shares certificates are. The Court emphasises that the Participants, as holders of certificates, had carefully delineated information rights under the COA. In fact, each of the Participants expressly so acknowledged and agreed in writing (in the “letter of acknowledgement”). The record shows there is no extensive or general authorisation for the Participants to review business records, seek to understand business strategy, or exercise oversight of executives’ decision-making. Accordingly, as the Court may enforce the agreement as written (nothing being in the record at this stage to suggest anything else), it is hard to see why the Participants should be allowed to investigate whether TerraPay made any mistakes as it carried out the Restructuring and share transfer to TPUK. For these reasons, the Court’s conclusion at this stage is that the Indian Participants did not present enough substantiation as to their interests in document disclosure here.

The second point is valuation. The Court acknowledges that, at least conceivably, it might be necessary to use a valuation of the business to quantify compensation due to the Indian Participants if they are compliant and compensation is due. But if so, that is a bridge to be crossed at a much later stage, after the Court has made decisions on the Compliance Issue and liability. At this stage of the litigation, before the Compliance Issue and any liability issues have been debated and examined in any detail, the Court is persuaded that TerraPay’s compelling interest in maintaining the confidentiality of the valuation reports (which it stressed) outweighs the Participants’ interest in disclosure of such information. The Court notes TerraPay’s point about potentially irreparable harm to the business as a result of extensive document disclosure (the valuation reports containing sensitive financial and business information, such that disclosure would harm TerraPay’s position). That would be in nobody’s interest, and suggests caution is appropriate as the Court considers the document disclosure issues, at this stage, especially in light of the analysis of share certificates in the previous paragraph. Along these lines, the Court is convinced the Participants did not sufficiently substantiate their reasons to review valuation data at this time.

As to valuation and the US Participant in particular, the Court accepts his argument that he is required to report a value to the US government (it is not in dispute that he is a resident of the US and his reporting obligations follow, as a matter of law), but based on TerraPay’s response, it is common ground that the government will accept any fair market valuation, and there is nothing in the record to suggest TerraPay’s valuation is required for these purposes or that the US Participant will experience undue burdens if he must prepare an alternative fair market valuation.

The third point is the Claimants’ reference to a potential lawsuit they might bring against the civil law notary who recorded the deed of transfer, seeking a remedy for breach of a fiduciary duty owed to them. The Claimants believe such a lawsuit gives them a sufficient interest in their motion, but the Court disagrees, since as explained above, the Compliance Issue may be the decisive point, one way or the other.

The US Participant’s claim for disclosure of documents (Claim 6.3)

5.8.

Claim 6.3 focuses on two categories of documents:

an extract from the register,
other documents substantiating or relating to share certificates, including a deed of issuance and a share certificate itself.

As to the extract, under Article 5.3 of the COA, the US Participant is entitled to an extract. It is not in dispute that TerraPay provided the US Participant with such an extract on 15 October 2024. Therefore, the US Participant no longer has any interest warranting relief.

As to the other documents, the Court observes that under Article 5.3 of the COA, the US Participant is entitled only to an extract from the register. For that reason alone, and absent further substantiation of a particular reason warranting disclosure, the Court denies the claim for disclosure. In short, the US Participant agreed an extract was enough and the Court will enforce the agreement. The Court notes it is undisputed that the Foundation repeatedly confirmed to the US Participant his current status as a TPUK share certificate holder. For example, such confirmation was given in a letter dated 10 January 2023. Along these lines, the Court finds that the US Participant presented insufficient substantiation on his alleged legitimate interest in the disclosure of other documents.

Conclusion

5.9.

In view of the above, the Court will reserve its decision on the Claimants’ motion.

5.10.

The next step in the main proceedings is for TerraPay to submit a statement of defence, and the Court will give directions to that effect, and refer the case back to the multi-judge chamber.

6.Decision

The Court:

on the motion

6.1.

reserves the decision regarding the motion,

in the main proceedings

6.2.

directs TerraPay to submit its statement of defence on or before
21 May 2025,

6.3.

refers the case back to the multi-judge chamber for further proceedings.

Done by L.S. Frakes, Judge, assisted by A. Hut, Clerk of the Court.

Issued in public on 9 April 2025.

APPROVED FOR DISTRIBUTION IN eNCC

THE SIGNED ORIGINAL IS IN THE HARD COPY FILE

SIGNATURE PAGE 1 OF 2

L.S. FRAKES

JUDGE

SIGNATURE PAGE 2 OF 2

CLERK OF THE COURT