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In C.A. No.1163 of 2013, filed before the Learned Company Judge, the respondent herein contended that C.P. No. 30 of 2012 was filed by M/s. R.N. Marwah & Company seeking winding up of the respondent-company, raising false claims of amounts being allegedly due for services purportedly rendered to them; the order of winding up, passed on 06-07-2012, was because of collusion between R.N. Marwah & Company, Sri Samson Arthur and Sri N. Chandrasekhar Rao who wrongly admitted liability of the respondent-company towards M/s. R.N. Marwah & Company, though no amount was due; on 13-06-2012 an affidavit was filed in C.P. No.30 of 2012, on behalf of the respondent-company, by Sri N. Chandrasekhar Rao wherein he stated that the respondent company did not have any assets; however the audit report, which was accepted by Sri N. Chandrasekhar Rao, records that the respondent-company had sufficient assets in terms of money i.e. Rs.62,91,40,790 owed to it by Mack Soft Tech Pvt. Ltd (Mack Soft in short); no mention was made by Sri N. Chandrasekhar Rao, before the Company Court, of the dilution of shareholding of the respondent-company in Mack Soft which is the subject matter of challenge in O.S. No.21 of 2012; on the contrary, in the affidavit sworn to on 13-06-2012 and filed before the Company Court, Sri N. Chandrasekhar Rao had stated that the respondent-company was not operating from the last more than one and half years; information regarding, dilution of shareholding, was suppressed by Sri N. Chandrasekhar Rao which constitutes a suggestion of falsehood i.e., suppression veri suggestio falsi; in another affidavit filed in C.P. No.30 of 2012 on 15-06-2012, whereby extension of time was sought to furnish the books of accounts of the respondent-company to the Official Liquidator, Sri N. Chandrasekhar Rao had stated that, as its records were in bad shape, the respondent-company was in the process of compiling complete records to file the same before the Official Liquidator; 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 the ground that an order of winding up dated 06.07.2012 was passed against the respondent-company; after falsely admitting liability towards M/s. R.N. Marwah & Company, and collusively obtaining an order of winding up against the respondent-company, Sri N. Chandrasekhar Rao, by filing the application under Section 446 of the Companies Act, had sought to misuse the order of winding up dated 06-07-2012 to prevent the bankruptcy receiver for QLS from taking control of the affairs of Mack Soft, and had thereby perpetrated the abuse of process of the court; in response to C.P. No.30 of 2012 filed by M/s. R.N. Marwah & Company, Sri Samson Arthur had filed a counter affidavit, purportedly acting on behalf of the respondent-company, wherein he stated that as the respondent-company was in financial difficulty it could not make payment to the petitioner, the reasons for non-payment was the continued financial crunch that the respondent company was presently facing, they had requested the petitioner to bear with the respondent-company in view of the on going financial crunch, and were trying to clear the outstanding dues of the petitioner arranging funds from some other source; these statements were falsely made by Sri Samson Arthur despite his knowledge to the contrary of the actual financial position of the respondent- company; the averments of Sri Samson Arthur, in the aforesaid counter affidavit, were in contrast to his averments in the caveat filed by him on 10-02-2012 wherein he claimed that the dues of the petitioner had been paid; these contradictory statements were an abuse of process of court; the audit report of Mack Soft disclosed that the respondent-company had lent Rs.62,91,40,970 to its subsidiary i.e., Mack Soft; these facts clearly demonstrate that the proceedings in the Company Petition were collusive, that Sri Samson Arthur and Sri N. Chandrasekhar Rao had deliberately filed false affidavits before the Court, they had deliberately withheld material information from the Court, and had concealed several relevant facts known to them; the action and conduct of Sri Samson Arthur and Sri N. Chandrasekhar Rao in making false statements, deliberately withholding relevant information, and suppressing material facts from the Court, reflects their willingness to act in the interests of, and at the instructions of, the erstwhile management of the respondent company; and, as such, the application in C.A. No.1163 of 2013 was filed seeking a direction to register a criminal case against both Sri N. Chandrasekhar Rao and Sri Samson Arthur.

The appellants herein filed their counter affidavits, in C.A. No.1163 of 2013 before the Company Court, stating that the authority of Mr. Robert Dix to file the said application was defective, in the absence of properly authorised and executed documents; the dispute in C.P. No.30 of 2012 related to non- payment of the contractual dues, by the respondent company, under the agreement dated 04-05-2011; the validity of the agreement dated 04-05-2011 had not been disputed even by the respondent-company; the entire proceedings, by the bankruptcy receiver, started only after 06-07-2011 when he was allegedly appointed as the bankruptcy receiver of Quinn Logistics Sweden; the agreement between M/s. R.N. Marwah & Company and the respondent-company was signed on 04-05-2011 i.e. more than two months prior to the alleged appointment of the bankruptcy receiver; there is no averment in the affidavit, filed in support of C.A. No.1163 of 2013, that the said agreement is a sham or has been backdated or that payment was made by the respondent company to M/s. R.N. Marwah & Company; the counter affidavit filed by Sri Samson Arthur honestly mentioned the financial difficulties faced by the respondent-company; the veracity of the statement of Sri Samson Arthur, regarding the financial difficulties faced by the respondent- company and the consequent inability to pay the petitioners dues, is duly established by the bank statements annexed along with the affidavit dated 13.06.2012 filed by Sri N. Chandrasekhar Rao; as per the annexed documents, the respondent-company had two bank accounts with HDFC bank and HSBC Bank; while the respondent-company had a bank balance of Rs.9,99,150/- in HDFC bank, a sum of Rs.2,772/- was lying to their credit in their HSBC bank account; the veracity of the bank statements has not been disputed by the respondent-company; it was evident that, as on that date i.e. 07-06-2012, the respondent- company was financially unable to meet its admitted liabilities; the fact that it was owed money by Mack Soft is completely immaterial as it would be a claim to be made by the respondent-company against Mack Soft; that is no ground for the respondent-company to deny payment of its admitted liability; on the date on which the agreement was executed, there was no order appointing the bankruptcy receiver as receiver in bankruptcy of Quinn Logistics Sweden AB; the respondent-company could not allege that attempts were made by the petitioner in C.P. No.30 of 2012, in collusion with the erstwhile management, to obstruct a change in the management of the respondent-company, and to prevent the court appointed receiver, in the bankruptcy of Quinn Logistics Sweden AB, from taking control of the assets of the respondent- company; the application in C.A. No.1163 of 2013 had been preferred with the sole motive of intimidating the present/ex- employees of the respondent-company; under the agreement dated 04-05-2011, Rs.45,00,000/- was required to be paid to M/s. R.N. Marwah & Company by the respondent-company for having provided services; the liability was admitted by the appellants that, although the amount was due to M/s. R.N. Marwah & Company, the respondent-company was unable to pay the dues because of its financial condition; the question of action being initiated against the appellants, for having committed perjury, does not arise; the EGM proceedings dated 18-02-2012 are not within their knowledge; it is denied that the documents filed by Mack Soft contained an audit report of Mack Soft dated 29-06-2011 issued by Sarath and Associates, Chartered Accountants for the year ending 31-03-2011; the respondent-company used to be the holding Company of Mack Soft; however fresh equity was issued by Mack Soft in June, 2011 to Mecon FZC, and the share holding of the respondent-company was transferred in August, 2011 to UCA Logvis AG; as on date the respondent-company is not a shareholder of Mack Soft; the dispute, relating to these transactions, is pending adjudication before the District Court, Ranga Reddy in O.S. Nos.21 of 2012 and O.S. No.1303 of 2013; as per the audit report, a balance loan of Rs.62,91,40,790 is pending in the books of Mack Soft as payable to the respondent-company; and this liability towards the respondent-company is also reflected in the balance sheet of Mack Soft dated 31-03-2012. The appellants denied that, in accordance with the audit report, the respondent-company had sufficient assets in terms of money owed to it by Mack Soft, or that they had falsely admitted liability towards the petitioner and had collusively obtained a winding up order against the respondent-company. The appellants also denied that the respondent-company was now under the management of Sri Robert Dix, Sri Paul Mc. Gowan, and Sri Bryan O' Neil who were unanimously appointed as Directors at the EGM held on 18- 02-2012, and subsequently confirmed at the EGM of the respondent-company convened on 29-07-2013 wherein the shareholders had also conferred authority on them to institute legal proceedings on behalf of the respondent-company. According to the appellants, the facts narrated above clearly showed that the affidavits dated 16-02-2012 and 13-06-2012 had truthfully and honestly mentioned the correct financial condition of the respondent company; and there was no falsity in the averments made by them.

Pursuant to the letter of requisition dated 28.12.2011, issued by QLS represented by the Bankruptcy Receiver, QLI issued a notice on 23.01.2012 calling for an extra-ordinary general meeting on 18.02.2012 for removal of the existing directors and for appointment of new directors in their place. After a notice was issued on 23.01.2012 by QLI for convening the extra-ordinary general meeting, and before the extra-ordinary general meeting was convened on 18.02.2012, Mr. Samson Arthur filed a caveat petition, on behalf of QLI and Quinn Lodgings India Ltd, in the High Court of A.P on 10.02.2012 against M/s. R.N. Marwah & Co. In the affidavit, filed in support of the caveat petition, Mr. Samson Arthur stated that all the dues of M/s. R.N. Marwah & Co., against the invoices raised by them, had already been cleared. Four days thereafter, on 14.02.2012, C.P. No.30 of 2012 was filed by M/s. R.N. Marwah & Co. seeking winding up of QLI.

Mr. Samson Arthur had filed an affidavit dated 10.02.2012, in support of the caveat petitions filed, on behalf of QLI and Quinn Lodgings India before the High Court, against R.N. Marwah & Co wherein he had stated to the contrary that:-

. the Respondent started rendering its services in relation to the FEMA compliances of the Caveator Company and raised invoices, for which the Caveator Company has cleared all the dues. Even then, by raising false and frivolous pleas, they had now issued legal notice under Section 433 of Companies Act dated 17.01.2012 Sri S. Niranjan Reddy, Learned Counsel, would submit that the averments, in the counter-affidavit filed in C.A. No.102 of 2012 on 16.02.2012, were false as the audit report filed by Mr. N. Chandra Sekhar Rao, as a representative of Mack Soft before the Ranga Reddy District Court, shows that Rs.62,91,40,790 (Rs.62.91 Crores) is due to the respondent-company from Mack Soft; the amounts due from Mack Soft to the respondent-company is also admitted in the counter filed, by Mr. Samson Arthur, to C.A. No.1163 of 2013; the fact that a sum of Rs.62.91 crores is due to QLI from Mack Soft has been suppressed in the counter-affidavit dated 16.02.2012; Mr. Samson Arthur, on his own admission, was an employee of Mack Soft from 01.07.2011; he could not have been unaware of these dues; it is nobodys case that Mack Soft was unable to pay the said sum of Rs.62.91 crores to QLI; in the counter filed by him in C.A. No.1163 of 2013, all that is stated by Mr. Samson Arthur is that the fact that QLI was owed money by Mack Soft was completely immaterial as it would be a claim to be made by QLI against Mack Soft; it is relevant to note that Mr. Samson Arthur did not, in the counter filed in C.A. No.1163 of 2013, even claim to be unaware of this debt of Rs.62.91 crores; in proceedings for winding up, the financial condition of the company must be held to be sound, and the company considered commercially solvent, when the company which was owed Rs.62.91 crores by another company, is sought to be wound up for non- payment of a much lesser sum of Rs.45.00 lakhs; QLI could not, in such circumstances, be said to financially incapable of repaying the alleged debt of R.N. Marwah & Company of Rs.45.00 lakhs, unless it was unable to recover its dues of Rs.62.91 crores from Mack Soft; it is not even the case of the appellants that QLI was unable to recover its dues from Mack Soft or that Mack Soft was also in financial difficulties and was unable to repay these dues to QLI; no reference was made even to the bank accounts of QLI in the counter filed in C.A. No.102 of 2012; Mr. Samson Arthur, in the affidavit filed by him in support of the caveat petition dated 10.02.2012, stated that the amounts due to R.N. Marwah & Company had been repaid; however, in the counter filed by him less than a week thereafter on 16.02.2012 in C.A. No.102 of 2012, he readily admitted the liability of QLI towards R.N. Marwah & Company; one of these two statements is evidently false; and reference to the bank balances, in the subsequent counter filed in C.A. No.1163 of 2013, is an afterthought and is referred to somehow justify the earlier false statements made on oath before the Company Court.