JUDGMENT
S.K. Keshote, J.
1. Heard learned counsel for the petitioner and perused the entire record of the petition.
2. The petitioner by this petition under Section 433 read with Sections 434 and 439 of the Companies Act, 1956 (for short, “the Act, 1956”), is praying for grant of the following relief :
“(a) that the respondent-company M/s. Nicholas Piramal India Ltd., through its managing director, 100, Central Point, Morarji Mills Compound, Parle, Mumbai-12, be wound up under and in accordance with the provisions of the Companies Act, 1956 ;
(b) that the official liquidator attached to the honourable court be appointed as liquidator provisionally in respect of all the assets, properties and affairs of the respondent-company ;
(c) award cost of the petition to the humble petitioner ;
(d) pass such further order as this honourable court may deem fit and proper in the facts and circumstances of the case.”
3. The facts of the case, in brief, are that M/s. Nicholas Piramal India Ltd. (hereinafter shall be referred to as “the company”) is a public limited company by shares incorporated under the Act, 1956. The petitioner claims itself to be a duly appointed distributor of the medicines and pharmaceutical drugs produced and manufactured by the company and is having the business transaction with the company. It is alleged in the petition that while appointing the petitioner distributor by the company it was agreed upon between the parties that the liability of all such medicines/pharmaceutical drugs, which will become expired on coming to end their expiry date as well as all such medicines/pharmaceutical drugs which stand damaged, will be on the company and the said expired date and damaged drugs will be returned back by the petitioner to the company. The company is alleged to have made liable to refund the amount of those expired date drugs and damaged medicines/pharmaceutical drugs and other taxes to the petitioner with all other expenditure to be incurred by the petitioner in purchasing and returning back those medicines/pharmaceutical drugs to the company as per the trade practice and guidelines issued by the All India Organisation of Chemists and Distributors. The petitioner stated that till date the petitioner has returned back to the company the expired/damaged/broken medicines amounting to Rs. 6,94,220.75. The interest on this amount has also been claimed at the rate of 18 per cent. per annum and thus the total amount outstanding of the petitioner against the company is allegedly of Rs. 10,23,701.78.
4. The document exhibit A is the notice sent by the petitioner to the company through the advocate, therein the claim has been made of Rs. 16,06,065.02. Under this notice the petitioner called upon the company to pay the debt amount failing which it will take the action under the Act, 1956 or the remedy under the civil suit. The notice has been replied by the company through advocate, the reference may have to the document exhibit B dated August 16, 2004 and the claim of the petitioner has been disputed. The petitioner despite of the fact that its claim has been disputed by the company, sent a notice under Section 434 of the Act, 1956 to the company. In this notice the claim of the petitioner is only in regard to the expired/damaged/broken medicines. The document is on the record as exhibit C and is very relevant and material. In the facts of the case what is replied by the company to the petitioner under its letter dated September 16, 2004, through the advocate prima facie appears correct. The petitioner nowhere stated that the other amount of rupees six lakhs odd has been paid by the company. The difference in these two claims is another ground on the basis of which prima facie it can safely be inferred that the petitioner has not come up with clean hands and this petition is an attempt to recover the amount aforesaid at the threat of winding up. The petitioner has not filed the civil suit. The petitioner has adopted a short cut and attempted to get the adjudication of its claim without paying court fee. This claim made by the petitioner does not fall within the domain of the winding up jurisdiction of the court. It is a case where appropriate remedy for the petitioner is to file the civil suit but it was not done for the obvious reason that it does not want to pay the court fees. The relief of the nature as prayed for in the petition cannot be granted to the petitioner.
5. In the result this petition fails and the same is dismissed.