UpHealth Vs. Glocal: Developments Including A Perjury Application By UpHealth Before The Calcutta High Court And Proposed Defamation Proceedings By UpHealth
Certain news articles have appeared, according to which, a court at Barasat, West Bengal appears to have passed an order
UpHealth Vs. Glocal: Developments Including A Perjury Application By UpHealth Before The Calcutta High Court And Proposed Defamation Proceedings By UpHealth
Certain news articles have appeared, according to which, a court at Barasat, West Bengal appears to have passed an order, whereby cognizance has been taken of a chargesheet filed by the Bidhannagar City Police in respect of FIR No. 105 of 2023 at Technocity Police Station against officials and employees of UpHealth Inc. and UpHealth Holdings Inc.
It is relevant to mention that against the aforesaid FIR No. 105 of 2023, UpHealth Holdings Inc. (“UpHealth”) had filed CAN No. 1/2023 in criminal writ petition bearing WPA No. 7832 of 2022. On 30 June 2023, the Hon’ble Calcutta High Court passed an order whereby no coercive steps were to be taken against the accused persons in the FIR No. 105 of 2023. However, it appears that despite the order dated 30 June 2023, an order seems to have been passed by the Barasat Court on 29 May 2024 on the eve of Phase VII of the general election of 2024 (Barsat witnessed polling in Phase VII) and during court vacation in West Bengal that a chargesheet has been filed against UpHealth officials. Neither a copy of the chargesheet, nor a copy of this purported order has been furnished to either UpHealth or any officials of UpHealth. This has not been informed by the Police Authorities to the Hon’ble Calcutta High Court either despite there being an earlier order dated 12 April 2023 of the High Court to apprise the High Court regarding the investigation as follows:
The police shall file a report on the adjourned date as regards the progress of investigation.
Interestingly, the purported order (as per the news article) notes that officials and employees of UpHealth Inc. and UpHealth Holdings Inc. have never appeared before the court. However, it fails to consider that they have never received any summons requiring their appearance.
Also, the headline of one of the news article is misleading. It reads “Kolkata court orders attachment and arrest warrants against UpHealth officials for fraud” but the article says that the court has “threatened” to take these steps (which means it has not taken these steps yet). This appears to be incorrect and is defamatory in nature. UpHealth will be initiating appropriate defamation proceedings against all concerned, including for misleading headlines and for tarnishing the image of UpHealth’s officials.
In response to the aforesaid news article regarding the order passed by the Barasat Court, UpHealth through its lawyers mentioned the criminal writ WPA No. 7832 of 2022 before the Hon’ble Calcutta High Court on 12 June 2024 and the Court was pleased to permit UpHealth to file an appropriate document regarding these developments and accordingly, such a supplementary affidavit has been filed. In the said affidavit, it has been prayed that that the conduct of the Respondents and the police authorities as mentioned in the news article, be taken on record. The affidavit also states that any such action is inconsistent, with the order dated 30 June 2023.
It is surprising to note that till date no reply has been filed to the writ petition, despite directions of the High Court contained in the order dated 25 April 2023. Moreover, it is also pertinent to note that in an FIR filed by UpHealth Holdings, Inc. through its authorized representatives against Dr. Syed Sabahat Azim, Ms. Richa Sana Azim, Mr. M. Damodaran, Mr. Gautam Chowdhury and Ms. Dipanwita Mukherjee, no progress has been observed till date and on the contrary undue haste is being shown as far as the FIR filed by Glocal is concerned.
During the mentioning of the matter on 12 June 2024, the Calcutta High Court, also gave liberty to UpHealth’s counsel to mention the matter for urgent listing after filing the appropriate affidavit, which has now been filed. UpHealth maintains that the allegations of fraud are baseless and are merely devised with an attempt to defeat the enforcement of an ICC Award against the individuals named above.
The Perjury Application
On 12 April 2024, the Hon’ble Calcutta High Court had passed certain directions, inter alia, directing Glocal Healthcare Systems Private Limited, Dr. Syed Sabahat Azim, Ms. Richa Sana Azim, Mr. Gautam Chowdhury, Mr. M. Damodaran and Kimberlite Social Infra Private Limited (“Respondents”) to file an affidavit of their respective assets, liabilities and pending litigations in connection with an award dated 15 March 2024 passed by a Chicago seated ICC arbitral tribunal comprising of Mr. V. K. Rajah, Former Attorney General and Judge of the Court of Appeals of Singapore, Ms. Carolyn Lamm, Partner at White & Case, Washington DC and Mr. Promod Nair, Senior Advocate from Karnataka High Court, under the aegis of the International Chamber of Commerce’s International Court of Arbitration, regarding breach of a Share Purchase Agreement between UpHealth Holdings Inc. and Glocal and its shareholders (the individuals named above). During the hearing, which ultimately culminated into the order dated 12 April 2024, Respondent No. 5, i.e. M. Damodaran (ex-SEBI Chief), had argued before the Calcutta High Court that he was not present in the meeting dated 26 September 2022, in which the rights of UpHealth were defeated and the SPA was breached. To support this contention, Damodaran’s counsel wrote a letter to Glocal Healthcare Systems Private Limited on 5 April 2024, calling upon them to produce the said minutes of the meeting dated 26 September 2022. Despite these minutes not being produced for two years before any court or the arbitral tribunal, these minutes were suddenly produced on 7 April 2024, at a mere request by Damodaran. This conduct was noted by the Calcutta High Court in the order dated 12 April 2024 as follows:
“The prompt response furnished by the respondent no. 1 to the respondent no. 5 in producing its Minutes Books and the Attendance Register of the respondent no.1 company with regard to the EGM dated 26 September 2022 demonstrates lack of bonafides and ill motive in not providing similar information contemporaneously insofar as the petitioner is concerned.”
Based on the observations of the Hon’ble CHC regarding the board minutes dated 26 September 2022, and certain other suspicious circumstances, UpHealth Holdings Inc. has reasonable belief that the said minutes of the meeting are ante dated and fabricated. In this regard, on 12 June 2024, UpHealth has filed an application under section 340 of the Code of Criminal Procedure, 1973, for initiating an inquiry against Glocal Healthcare Systems Private Limited, Dr. Syed Sabahat Azim, Ms. Richa Sana Azim, Mr. Gautam Chowdhury, Mr. M. Damodaran and Kimberlite Social Infra Private Limited for the offenses specified in Section 195(1)(b) alleging inter alia perjury. This application will come up for hearing at an appropriate stage.