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(Per G.S. Patel, J.)

1. The petitioner claims that the respondent company, M/s. K A Malle Pharmaceuticals Limited. ("the Company"), is indebted to it the petitioner in the amount of Rs.52,82,59,398/-. It contends that as the Company has neglected to pay this amount without just cause and despite the service of a statutory notice under sections 433 and 434 of the Companies Act, 1956, the Company should be ordered to be wound up.

13. The Court's jurisdiction under Sections 433 as and 434 of the Companies Act, 1956 is a summary jurisdiction. It does not lend 7 of 14 CP21-12-F.DOC itself to the minute scrutiny and examination of evidence that is possible in a regular civil proceeding. The Company's defence shows that its alleged liability to the petitioner is very seriously disputed. It claims to have been made the victim of a vast conspiracy and fraud. There is, in my view, considerable merit in this. The petitioner itself is, through one of its principal officers ( Jayesh Desai), involved in these murky and illicit transactions. This is not a simple case of goods sold and delivered, their price unpaid without just cause. This is a story yet unravelling of tangled webs of fraud, deceit, illegality, diversion of funds and exports. Government officials are involved. Criminal investigations continue. It is impossible to hold that the Company has neglected to pay the petitioner's claim without just cause. If the Company is correct in its submission, then it is very clearly the victim of a very well thought out fraud and conspiracy.

17. Two judgments relied on by Mr. Khata in Karpara Project Engineering v Ballarpur Industries Ltd. 2 and IBA Health India Pvt. Ltd. v Info-Drive Systems Sdn.Bhd.3 are, in my view, against him. In Ballarpur, a learned single Judge of this Court set out at length the principles enunciated by the Supreme Court in relation to Sections 433 and 434 of the Companies Act, 1956 in Mediquip Systems Pvt. Ltd. v Proxima Medical System GmBH.4 There, the Supreme Court cited with approval the decision of this Court in Softsule (P) Ltd.5 A fundamental principle set out in these decisions militates against the acceptance of Mr. Khata's case. Where there is a bona fide dispute, 2008 (Supp) Bom.C.R. 39 (2010) 10 SCC 553 (2005) 7 SCC 42 [1977] 47 Com Cas 438 11 of 14 CP21-12-F.DOC there cannot be a "neglect to pay" within the meaning of Section 434(1)(a) read with Section 433(e). A winding up on the ground that the company is unable to pay its debts is, in such cases, unjustified.

That is a very recent decision of 21st January 2014 between the petitioner and one Ushma Jewellery Private Limited. Ushma Jewellery was yet another of MSTC's associates. In that order Gupte, J. categorically held that serious triable issues arise, and granted unconditional leave to defend.

19. Mr. Sethna also relied on the Supreme Court decision in Mediquip. He is justified in his contention that jurisdiction of Company Court under Section 433 is discretionary. The debt claimed under Section 433 must be determined or definite. A winding up petition is not a legitimate mode of debt recovery. Where there is a bona fide dispute, there cannot be a neglect to pay. The other decisions cited by Mr. Sethna are all to the same effect; I do not think it is necessary to discuss each one. 6 IBA Health India, supra; Asim Pharmachem Industries v Nilsin Ultrachem Ltd., [2013] 176 Com Cas 460 (Guj); M/s Shubham Constructions v M/s MVD Auto Components Pvt. Ltd. & Anr., Company Petition No.322 of 2012 (Delhi High Court), decided on 13th September 2013, MANU/DE/3182/2013; Reliance Infocomm Ltd & Anr. v Sheetal Refineries P. Ltd., [2008] 142 Com Cas (AP) 12 of 14 CP21-12-F.DOC