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2015 Supreme(AP) 958
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATES OF TELANGANA AND ANDHRA PRADESH
A. Rajasekhar Reddy, J.
Quinn Logistics India Pvt. Ltd. - Appellant
Vs.
R.N. Marwah And Company And Others - Respondents
Company Application No. 1163 of 2013 in C.P. No. 30 of 2012
Decided On : 25-03-2015
For the Appellant : S. Niranjan Reddy
For the Respondent:S. Ravi, Advocates
Headnote:
Companies Act, 1956 - Section 446 – Winding up of Company – Applicant is that Company Petition was filed against the applicant seeking winding up of the applicant company on the basis of the amounts allegedly due for services purportedly rendered to the applicant and a winding up order was passed against the applicant company on 06-07-2012 on account of collusion between the petitioner in C.P. No. 30 of 2012 (hereinafter known as petitioner) and Sri Samson Arthur and Sri N. Chandrasekhar Rao, who admitted the liability of the applicant towards the petitioner. It is stated that Quinn Logistics Sweden AB (in bankruptcy) (QLS) which is holding company of the applicant filed an application for recalling winding up order and this Court recalled the said winding up order on 13-08-2013. It is stated that Sri Samson Aruthur and Sri N. Chandrasekhar Rao have wrongfully admitted liability of the applicant towards the petitioner and the applicant contends that no dues are payable by it to the petitioner who colluded with Sri Samson Aruthur and Sri N. Chandrasekhar Rao and initiated proceedings against the applicant on the basis of false claims – Held, only reason for non-payment of the outstanding dues by respondent company was the prevailing financial condition of the respondent company, which is contrary to the audit report filed by Sri M. Chandrasekhar Rao as representative of Mack Soft before Ranga Reddy Court in which it is shown that INR 62,91,40,970 (INR 62.91 Crores) is due to the applicant from Mack Soft and that the amount due from Mack Soft to applicant company is also admitted in the counter to the present application. The Company Court, while appointing provisional liquidator in C.P. No. 30 of 2012 filed by the petitioner held that the Court passed the order for appointing of provisional liquidator since the counter affidavit filed by Sri Samson Arthur is vague and has not chosen to give details of its assets nor has it assured the Court that the assets would not be taken away beyond the jurisdiction of the Court. Admittedly, caveat petition is filed by the applicant company on 10-02-2012 and winding up petition in C.P. No. 30 of 2012 is filed on 14-02-2012 by the petitioner and winding up order is passed on 06-07-2012. The sequence of events leading to winding up order in the company petition in quick succession would also give rise to a presumption that the non-applicants 1 and 2 have not placed correct facts before the Court before winding up order is passed. The respondents being legally bound by on oath to state the truth in their affidavits in C.P. No. 30 of 2012 is prima facie held to have made a false statement which constitutes an offence of giving false evidence as defined under Section 191 punishable under Section 193 and 209 IPC – ordered accordingly
A. Rajasekhar Reddy, J.
The present Company Application is filed seeking a direction to register a complaint against Sri Samson Arthur and Sri N. Chandrasekhar Rao under Sections 191, 192, 193 and 209 of the Indian Penal Code, 1860.
2. The case of the applicant is that Company Petition 30 of 2012 was filed against the applicant seeking winding up of the applicant company on the basis of the amounts allegedly due for services purportedly rendered to the applicant and a winding up order was passed against the applicant company on 06-07-2012 on account of collusion between the petitioner in C.P. No. 30 of 2012 (hereinafter known as petitioner) and Sri Samson Arthur and Sri N. Chandrasekhar Rao, who admitted the liability of the applicant towards the petitioner. It is stated that Quinn Logistics Sweden AB (in bankruptcy) (QLS) which is holding company of the applicant filed an application for recalling winding up order and this Court recalled the said winding up order on 13-08-2013. It is stated that Sri Samson Aruthur and Sri N. Chandrasekhar Rao have wrongfully admitted liability of the applicant towards the petitioner and the applicant contends that no dues are payable by it to the petitioner who colluded with Sri Samson Aruthur and Sri N. Chandrasekhar Rao and initiated proceedings against the applicant on the basis of false claims. The applicant, among other things, stated that on 13-06-2012 an affidavit has been purportedly filed in the company petition on behalf of the applicant by Sri N. Chandrasekhar Rao wherein he stated that the applicant company does not have any assets at all and is not operating for the last one and half years since January 2010, but the audit report, which has been accepted by Sri N. Chandrasekhar Rao, states that the applicant company has sufficient assets in terms of monies i.e. INR 62,91,40,790 owned to it by Mack Soft and acknowledged in the Audit Report. It is also stated that no mention has been made by Sri N. Chandrasekhar Rao before the Court of the dilution of shareholding of the applicant in Mack Soft, which is subject matter of challenge in O.S. No. 21 of 2012 and on the contrary, in the affidavit before the Court sworn on 13-06-2012 stated that the applicant company is not operating from last more than one and half years and the above material was suppressed by Sri N. Chandrasekhar Rao regarding dilution of shareholding constitutes suggestion of falsehood in terms of the maxim suppression very suggestion falsi. It is further stated that on 15-06-2012 in another affidavit filed in the Company Petition seeking extension of time for providing the books of accounts of the applicant to the Official Liquidator, Sri N. Chandrasekhar Rao stated that the records of the company are in bad shape and the applicant company is in the process of compiling the complete records in order to file the same before the Official Liquidator and the records of the applicant company have not been filed before the Official Liquidator. It is further stated that Sri N. Chandrasekhar Rao filed an application on behalf of Mack Soft in O.S. No. 21 of 2012 under Section 446 of the Companies Act, 1956 seeking stay of further proceedings in O.S. No. 21 of 2012 on account of passing of winding up order against the applicant company dated 06-07-2012. It is further stated that after falsely admitting the liability towards the petitioner and collusively obtaining a winding up order against the applicant, Sri N. Chandrasekhar Rao by filing the application under Section 446 of the Companies Act sought to utilize the order dated 06-07-2012 to prevent the bankruptcy receiver for QLS from further proceeding in its attempts from controlling the affairs of Mack Soft and thereby perpetrated the abuse of process of the court.
3. The applicant company further stated that in response to the company petition filed by the petitioner, Sri Samson Arthur filed counter affidavit purportedly acting on behalf of the applicant, wherein Sri S
