HETERO DRUGS LIMITED Vs. NECTAR LIFESCIENCES LIMITED

JUDGEMENT

(1.) The Rules for maintaining a winding up petition are well settled as per the ratio decidendi culled out by the Hon'ble Supreme Court in Madhusudan Gordhandas and Co. Versus Madhu Woolen Industries Private Ltd., : AIR 1971 (SC) 2600. In the said judgment, it has been held that where a debt is bonafidely disputed and defence is substantial one, the Court will not wind up the company but where the defence is malafide, the Court will not act upon a defence that the company has the ability to pay the debt, but chooses not to pay that particular debt. In such circumstances, the winding up order is inevitable. The present case has to be examined on the touchstone of aforementioned two parameters, i.e., whether the dispute raised by the defence is bonafide or not, much less the liability is disputed or not.

(2.) In order to appreciate the aforementioned two questions posed, it would be apt to refer few facts.

(3.) The case set up in the present petition seeking winding up of the respondent company is that the petitioner company is a creditor of the respondent company on account of the business dealings as per their balance sheet. It has been stated that the respondent company, vide Purchase Order bearing No. NLL/R.M./U02/086/2010 -2011 dated 10.7.2010 (Annexure P -1) had placed an order with the petitioner company for supply of 3000 Kgs. @ Rs. 9500/ - per unit (kg.) totalling to Rs. 2,85,00,000/ - of Cefixime Trihydrate (for short "CT"). In pursuance to the order placed by the respondent company, the petitioner company supplied the requisite material against different invoices (Annexures P -2 to P -8), which are stated to have been received by the respondent company. The same are reflected in Para 6 of the petition. It has been further stated that the material supplied was sent to the respondent company through credit and the price of the material was worth Rs. 3,20,64,210/ - and this fact is reflected in the provisional balance sheet of the petitioner company, which has been attached as Annexure P -10.