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CBZ Chemicals Ltd v/s KEE Pharma Ltd

    CO.Pet. No. 66 of 2013 & CA Nos. 5030 of 2016, 5033 of 2016
    Decided On, 15 September 2017
    At, High Court of Delhi
    By, THE HONOURABLE MR. JUSTICE YOGESH KHANNA
    For the Petitioner: Ashish Dholakia, D. Kishore Kumar, Gautam Bajaj, Advocates. For the Respondent: Anil Kumar Kher, Sr Advocate with Siddhartha Jain, Namita Sharma, Advocates.


Judgment Text
Yogesh Khanna, J.

1. The petitioner is engaged in the business of design of novel synthetic routes or processes to manufacture fine chemicals/ pharmaceutical products; and design and development of new pharmaceutical entities/molecules in the area of drug development.

2. The respondent also carries on the business of manufacture, deal, trade, sell and market of all kinds of pharmaceuticals, medical, chemical, fine chemical drugs and other allied products etc. The respondent had acquired a subsidiary company under the name and style of Helvetica Industries Pvt. Ltd. which is engaged in the research and development activities, located at Hyderabad.

3. Respondent represented itself to the petitioner as a company engaged in the business of manufacture, sale and export of biopharmaceutical formulations and chemicals, contract research in medicinal chemistry etc.

4. The parties on 18.05.2009 had entered into an agreement for the sale of design for the process to manufacture the drug atorvastatin, for a total consideration of USD 5,50,000 to be paid by the respondent to the petitioner. The agreement pertains to sale of design of a process which would lead to production of the drug “Atorvastatin”.

5. As per the agreement, design may be defined as a creation of a plan or roadmap for the preparation of the synthesis of a chemical. A design is a theoretical framework within which the process or chemistry is worked out to produce the desire product. It may also be defined as a roadmap or a strategic approach for someone to achieve a unique expectation. Some of the relevant terms of the agreement are as follows:-

“2.

a. xxx xxx

b. xxx xxx

c. KPL will undertake a VALIDATION of the Design of the PROCESS which will be followed by the development of the Process that leads to the manufacture of Atorvastatin and filing for the related Patent.

The VALIDATION, development of the process that leads to the manufacture of Atorvastatin and filing of the related Patent will be completed by KPL within a period of 6 months from the date of receiving the Technology Package (comprising of adequate documents and details, including laboratory data, etc. regarding the Design of the PROCESS).

It is agreed that the complete Technology package will be provided by CBZ to KPL within a period of 1 month from the date of execution of this Agreement.

d. If the PROCESS DESIGN is not found to lead to a PROCESS to manufacture ATORVASTATIN, as a result of the VALIDATION of the Design of the PROCESS, the development of the Process that leads to the manufacture of Atorvastatin and filing of the related Patent, as stated in Clause # 2.c above and is accordingly certified by KPL and / or the process is not Patented, then KPL will have the option of terminating this Agreement without any further liability or obligation, financial or otherwise accruing to it, in any manner whatsoever.

e. KPL will have the option to either retain the technology for its own use, i.e. use the DESIGN PROCESS or the PROCESS resulting from it to manufacture the drug 'ATORVASTATIN', OR sell / re-sell or licence the same to a third party, in India or any other country in the world.

3. xxx xxxx

4. The consideration for the Sale of the unique patentable PROCESS DESIGN under provisions of this Agreement, to be paid by KPL to CBZ will be a total of US $ 550,000 (US DOLLARS FIVE HUNDRED AND FIFTY THOUSAND) to be paid in the following manner:

a. An amount of US $ 40,000 ( US Dollars Forty Thousand) will be paid to CBZ by KPL and will be treated as an interest free REFUNDABLE DEPOSIT. This amount would be refundable and payable immediately in case this Sale of Process Design Agreement is terminated in terms of Clause # 2.c and Clause # 2.d above, or otherwise be adjusted, in terms of Clause # 4.d, below. The condition of payment of the amount of US $ 40,000 under the provisions of this Agreement will stand fulfilled and discharged, in lieu of US $ 40,000 paid as part of the composite and combined consideration payable under the provisions of the Sale of Technology Agreement and the Licencing of Patent Agreement dated 12.06.2008 ( in respect of the earlier developed patentable process for the manufacture of ATORVASTATIN raw material in bulk for formulation of the end product ), which now stand terminated, revoked and cancelled,.

b. A Bank Guarantee for an amount of US S 60,000 (US Dollars Sixty Thousand) will be issued in favour of CBZ, for a period of 8 months, on a bank to be specified by CBZ, as per format to be agreed upon between the two parties. However, this Bank Guarantee will be issued only after the Bank Guarantee issued for US $ 60,000 under the terms of the Sale of Technology Agreement and the licencing of Patent Agreement dated 12.06.2008 (in respect of the earlier developed patentable process for the manufacture of ATORVASTATIN raw material in bulk for formulation of the end product), executed Simultaneously, is returned in ORIGINAL with a NO CLAIM I NO DUES letter to KPL for CANCELLATION by the issuing bank.

c. If the VALIDATION of the Design of the PROCESS is successful and is accordingly certified by KPL as envisaged under clause # 2.c above, and the PATENT for the PROCESS is filed with the Patent Office, after completion of procedures such as Pre - Filing Search, Drafting etc., then

i. The amount of the SECURITY DEPOSIT for US $ 40,000 will be deemed to have been adjusted against the total consideration of US $ 550,000 envisaged and payable under this agreement, discharged through the payment of US $ 40,000 under the Sale of Technology Agreement and the Licencing of Patent Agreement dated 12.06.2008 and adjusted towards the payment of consideration under this Agreement.

ii. An amount of US 60,000 will be paid immediately after the successful VALIDATION of the Design of the PROCESS, the development of the Process that leads to the manufacture of Atorvastatin and filing for the related Patent of the PROCESS.

On payment of this amount of US $ 60,000, CBZ will have no further claims under the Bank Guarantee issued by KPL in terms of Clause # 4.b above and the said Bank Guarantee will stand discharged, cancelled and revoked and the original guarantee will be surrendered and returned to KPL, immediately.

However, if KPL defaults in making the payment within the stipulated time period, CBZ will have the liberty to invoke the Bank Guarantee issued by KPL in its favour.

iii. KPL will file for the PATENT of the PROCESS and grant of the PATENT by the Patent Office will bring this Agreement to its logical conclusion.

d. The total consideration being US $ 550,000 (US Five Hundred and Fifty Thousand), if the VALIDATION of the PROCESS developed and patented by CBZ is successful and found to lead to a PATENTABLE PROCESS to manufacture ATORVASTATIN and accordingly certified by KPL and the application for the PATENT for the PROCESS is filed with the Patent Office, after completion of procedures such as Pre - Filing Search, Drafting etc., then the remaining consideration of US $ 450,000 will become due and will be discharged in four parts, as follows:

i. The first part, constituting an amount of US $ 100,000 will be paid within one month of filing of the Patent for the PROCESS, i.e. after the end of the time period mentioned under Clause # 2.6.

ii The second part, constituting an additional amount of US $ 100,000 will be paid by the end of the Quarter, following the quarter in which the first part of US $ 100,000, as detailed in Clause # 4.d.i above, has been paid.

iii The third part, constituting a further amount of US $ 125,000 will be paid by the end of the next Quarter, following the Quarter in which the second part of US $ 100,000 , as detailed in Clause # 4.d.ii above, has been paid.

iv The fourth and final part, constituting a further amount of US $ 125,000 will be paid by the end of the next Quarter, following the quarter in which the third part of US $ 125,000, as detailed in Clause # 4.d.iii above, has been paid.

e. If however, the unique patentable PROCESS DESIGN, subject matter of this Agreement, after VALIDATION as envisaged in Clause 2.e above, is not found to lead to a PROCESS to manufacture ATORVASTATIN or the PROCESS is not found to be Commercially Viable or KPL is unable to file for the PATENT due to deficiencies in Pre - Filing Search or otherwise, then this Agreement will stand immediately cancelled, annulled and terminated and

1. The SECURITY DEPOSIT for US $ 40,000 paid as per Clause # 4.a above will be refunded and returned by CBZ immediately, and

2. The BANK GUARANTEE provided for US $ 60,000 in terms of Clause # 4.b above, will automatically stand discharged, cancelled, revoked and withdrawn, and CBZ will have no claims under it and will ensure that the original guarantee is surrendered and returned to KPL, immediately.

3. All other monies paid, will be returned and refunded immediately.

4. There will be no further financial claims or obligations of any kind arising in any manner whatsoever, on either side.

f. It is expressly understood and agreed between both the parties that the total payments to be made by KPL to CBZ as part of the overall consideration envisaged under this Agreement, before receipt of Technology package (comprising of adequate documents and details, including laboratory data, etc. regarding the Design of the PROCESS) for the unique patentable PROCESS DESIGN to manufacture the drug ATORVASTATIN would be only the security deposit of USD 40,000 and a Bank Guarantee for US 60,000 as per provisions of Clause # 4.a and Clause 4.b, above.

It is further understood and agreed that all further payments would become due in terms of Clause # 4.d above, only after the successful VALIDATION of the Design of the PROCESS, the development of the Process that leads to the manufacture of Atorvastatin and filing for the PATENT of the PROCESS with the work on the validation of the Design of the PROCESS commencing after KPL has received the Technology package (comprising of adequate documents and details, including laboratory data, etc. regarding the Design of the PROCESS).

5. All payments made under this Agreement, whether by nature of advances or otherwise, shall be secured and guaranteed by a Personal Guarantee from the Directors, adequately executed under the laws of England and duly notarized and accompanied by a certificate of net worth of the individual executing the personal guarantee, issued by an appropriate authority such as the bankers of the individual issuing the personal guarantee or a practicing Chartered Accountant, till such time that:

a. the VALIDATION of the Design of the PROCESS, the development of the Process that leads to the manufacture of Atorvastatin and filing of the related Patent referred to in Clause # 2.c read with Clause # 4.c has been undertaken by KPL, AND

b. the PATENT for the PROCESS is granted by the Patent Office.

Therefore, the Personal Guarantee will remain valid till such time the Patent for the Process is granted by the Patent Office. Initially, the personal guarantee be issued for a period of 2 years, with a provision for automatic cessation and termination of the Personal Guarantee on grant of the Patent for the Process by the Patent Office to KPL.

6 to 10. xxx xxxx

11. It is clearly understood by both the parties to the Agreement that this Agreement is being executed on the basic premise that the unique Design is for a PATENTABLE PROCESS which would lead to the grant of a PATENT, under the relevant Patent laws and to the production of the drug, ATORVSTATIN and that this understanding is of essence for this Agreement.”

6. Now dispute raised is a) the petitioner did not cooperate with the respondent in providing all technical support for validation of the design of the process that leads to the manufacture of Atorvastatin and b) the product is not commercially viable, hence the respondent had to terminate the agreement.

7. Whereas the petitioner says the validation of the design of the process that would lead to manufacture Atorvastatin was successful and since the application for the patent for the process is filed with the patent office, after completion of procedure such as pre-filing Search, Drafting etc, the respondent now is bound to pay a total consideration of USD 5,50,000, per agreement dated 18.05.2009.

8. The learned counsel for the petitioner has relied upon the statutory notice dated 26.05.2002 sent to the respondent wherein para 10 and 11 the following assertions are made:-

“10. That you have already filed for two patents based on the Design for the Process provided by my client i.e. CBZ Chemicals Ltd. and forming part of the said agreement; one patent having been filed simultaneously in USA, UK and India bearing Patent Nos. 13/091717, 1106796.4, and 2197/DEL/2009, respectively and the other patent you have filed under the PCT route, bearing no.PCT/IN2011/000523.

11. That your having made a total payment of US $2,00,000/- in discharge of part consideration as stated in the Agreement and having been already filed for the two patents based on the Design for the Process forming the subject matter of the Agreement, are a clear acceptance of the Design for the Process: making yourself liable to pay/ release to my client the entire remaining consideration of US$3,50,000/- as per the time schedule, agreed upon under Article 4.d of the Agreement.”

9. The respondent replied to paras 10 and 11 of statutory notice as follows:

“10. Contents of Para 10 of your Notice are not denied. However, the said patents are still to be accepted and certification is to be issued to my clients by the appropriate Authorities. Additionally, it is stated that the patents have been filed for only a part of the process, which is not complete in itself, and the patents have been filed largely with the intention of protecting the work already done.

11. Contents of Para 11 of your Notice are admitted to the extent that my clients made a total payment of US$ 200,000. It is, however, incorrect to allege that the said payment was part consideration as alleged. Please advise your client that mere filing of patents on the alleged Design for the Process would not entitle your client to make any claim for the money under the said Agreement. It is denied that my clients are liable to make any payment of US$ 350,000 as alleged. Please advise your client that such amount would become payable only on completion of the validation of the PROCESS.”

10. The respondent though agreed that it had filed applications for patent but alleged that it spent huge amount of money, running into millions to complete the validation process and hence could not have abandoned the process in between, lest would have suffered huge losses and all that happened because of petitioner’s failure to honour its contractual obligations.

11. Admittedly the agreement is dated 18.05.2009. Admittedly the validation/ development of the process which lead to manufacture of Atorvastatin and their filing for the patent was to be completed within a period of 6 months from the date of receipt of technology package (comprising of adequate documents and details, including laboratory data, etc. regarding the design of the process). Such complete technical package was to be provided to the respondent within a month of execution of this agreement. There is no denial of the respondent that such documents/details including laboratory data regarding the Design of the Process was not provided within a month. There is also nothing on record to show any communication by the respondent that the design of the process could not lead to manufacture of Atorvastatin though now the respondent alleges that since the Process is not patented as yet and since the petitioner did not cooperate, the respondent had suffered losses and the respondent is in no way liable to pay the balance of USD 3,50,000 to the petitioner.

12. Admittedly, per sub clause (c) of clause 4 of the Agreement, initially the security deposit of USD 40,000 was to be adjusted and further an amount of USD 60,000 was payable only after a) successful validation of the Design of the Process, b) the development of the Process that leads to the manufacture of Atorvastatin and c) on filing of the patent of the Process. The respondent admittedly paid USD 40,000 and USD 60,000 on this account, thereby indirectly acknowledging the validation Process viz. the development of design of Process leading to manufacture of Atorvastatin being complete and only then the respondent went ahead to file related patent of the Process. This fact of filing of patent is admitted in reply dated 19.06.2012 of respondent to the statutory notice.

13. In terms of sub clause (d) of clause 4 of the Agreement dated 18.05.2009 the respondent even paid a further amount of USD 1,00,000 which is no doubt was payable after one month of the filing of the patent for the process. Hence, when the respondent paid the first installment of USD 1,00,000 then there was no reason to stop further payments on the ground the patent has not been granted as yet. It has not been refused either.

14. The correspondence between the parties make an interesting reading. An email dated 05.03.2010 was sent by Kapil Kohli MD of the respondent to the petitioner, with a copy to Mr. Anil Motihar and it runs as under:

“Subject: ATORVASTATIN!!

Dear Chris,

Greetings from India!!

Further to your tele-conversation with Mr.Motihar in reference to the tele-conversation between you and Dr.Pradhan and as already confirmed to you by Dr.Pradhan, we are accepting the process and will go ahead with the purchase of the Design for the Process to manufacture the drug Atorvastatin, in terms of the Agreement for the same dated 18th May, 2009.

However, we would like to request you to please consider a deferment of all further payments by a period of three months, in which case, we would extend the present Bank Guarantee by another period of three months.

We look forward to you response.

Best Regards,

Sd/-

KAPIL KOHLI”

Annexure P-4 is an email dated 15.03.2010 from Kapil Kohli MD of the respondent to the petitioner with a copy to Mr. Anil Motihar and it runs as under:

“Subject:

SCHEDULE OF PAYMENTS UNDER ATORVASTAQTIN AGREEMENT!!

Dear Chris,

Further to your conversation with Mr. Anil Motihar, please confirm extension of the validation period and the time period for all the future payments under Atorvastatin Agreement by a period of 3 months.

Accordingly, the periods mentioned under Clause 4 d. i to iv, for making part payments for the total consideration mentioned in the Agreement for Atorvastatin will automatically be extended by 3 months.

Kindly confirm understanding.

Best Regards,

Sd/-

KAPIL KOHLI”

Annexure P-5 is an email dated 15.05.2010 by the petitioner to Kapil Kohli with a copy to Anil Motihar.

“Subject: RE: SCHEDULE OF PAYMENTS UNDER ATORVASTAQTIN AGREEMENT !!

Kapil,

On this one I 'can confirm that all future payments as per the schedule have been agreed to be pushed out by a three month interval.

Please can you prepare an addendum to the contract that makes this clear, then I will arrange for someone from CBZ to sign.

Kind Regards

Chris”

Another email dated 12.07.2010 read as under:-

“Dear Chris,

Further to your recent tele conversation with Mr.Anil Motihar, please be advised that we are in the process of remitting US 1,00,000 to CBZ, under the provisions of the 'Sale of Design for the Process to Manufacture the drug Atorvastatin' dated 18th May, 2009.

The relevant papers are being processed by the bank and we expect the remittance to be effected within two or three days.

Please note the following:

a. The remittance is being made to CBZ Ale No. 50743992 with Barclays Bank, plc Cambridge.

b. The Income Tax to be deducted at source, according to the laws presently in force in India, is 20% of the amount to be remitted. As you are already aware, this deduction is mandatory.

You will of course be allowed a set off in UK for the tax deducted in India, in accordance with the provisions of the 'Double Taxation Avoidance Agreement between UK and India', on basis of documents/certificates issued by us in support of the tax deduction made.

Please confirm your understanding and also the correctness of the account to which the remittance is being made.

Best Regards,

KAPIL KOHLI

KEE PHARMA LTD”

Further email dated 19.07.2010 read as under:-

“Dear Chris,

Please be advised that an amount of US 80,000/- was remitted to the US$ account of CBZ on Friday, 16th July, 2010 (US $ 100000 less Income Tax deducted at source@20%).

We will forward a copy of the Swift Message within a day.

All documents related to the Income tax deducted at source will also be forwarded to you in due course to enable you to claim a set off against the taxes payable by you in UK.

Cheers!!

Kind Regards,

KAPIL KOHLI”

Annexure P-6 is an email dated 08.10.2010 from Kapil Kohli MD of the respondent to the petitioner with a copy to Mr. Anil Motihar.

“Subject: RE: CBZ Stage Payment

Dear Chris,

We herewith confirm that we shall be deducting Tax at Source on the total remaining consideration payable for the Sale of Design for the Process to manufacture the drug Atorvastatin. Accordingly, an amount of USD 70,000 would be deducted and paid on account of Tax Deducted At Source for the remaining consideration of UD 3,50,000 payable to CBZ. This amount of USD 1,00,000 payable to CBZ, as per schedule of payments specified.

The Payment has been delayed on account of our preoccupation with the audit process, the Annual General Meeting and effecting a change of auditors.

We are now processing the payment of US 30,000 (next installment of USD 1,00,000 less USD 70,000 deducted on account of TDS) and will revert to you with details, shortly.

Best Regards, KAPIL”

15. All these e-mails rather prove that initially there was no dispute qua the liability of the respondent to pay Rs.3.5crores, i.e. the balance amount, however later, the respondent started taking frivolous pleas. 16. The agreement, the correspondence and the conduct of the parties thus prove the following:-

a) the petitioner provided the Technology Package for the design to the Respondent in August 2009. In terms of clause 2(c) of the Agreement, the 6 months’ period for Validation and the development of the process that leads to the manufacture of Atorvastatin expired on 28.02.2010;

b) on 05.03.2010, the respondent wrote to the petitioner conveying that it was accepting the process and would go ahead for the purchase of the design but requested for deferment of further payment by a period of 3 months;

c) the petitioner vide email of 15.03.2010 acceded to the respondent’s request and confirmed deferment of all future payments by a three months interval;

d) admittedly, the respondent, through its subsidiary M/s Helvetica Industries Private Limited, filed the patent for the process on 23.04.2010;

e) the respondent thereafter made payment of USD 100,000 to the Petitioner in July 2010 after deduction of tax at source. Admittedly, by July 2010, the respondent had made payment of USD 200,000 to the petitioner;

f) on 08.10.2010, the respondent wrote to the petitioner that the next installment of USD 100,000 would be paid after deduction of tax at source on the entire amount and pointed out that the payment had been delayed on account of the respondent’s “pre-occupation with the audit process, the Annual General Meeting and effecting a change of auditors”. However, neither this installment nor any other installment was paid, as a result of which the balance sum of USD 350,000 payable under the Agreement remained outstanding;

g) it is evident from a bare perusal of the Agreement that filing of the related patent for the process was regarded as the final step to be undertaken before payment became due. In other words, all the steps regarding Validation, determination of commercial viability, development of the process that leads to the manufacture of Atorvastatin and carrying out pre-filing search and drafting, etc. were to precede and culminate into filing of the patent for the process with the Patent Office. The respondent filed its application for the process of the patent on 23.4.2010, soon after accepting the design on 05.03.2010 and seeking deferment of payment by three months, the said application was published in 2016 and is still pending;

h) the record also clearly establishes that between 2009–2012, the respondent did not raise a single dispute or claim whatsoever, whether to the effect that the Petitioner had breached the contract, or had not provided technical support, or that the Technology Package provided by the petitioner was incomplete or deficient in any way or that the petitioner had made any misrepresentation to it, or had acted to defraud the Respondent, or otherwise. It simply accepted the design, made part payment, filed application for the process, sought further time to make the remaining payment and even conveyed that it would deduct TDS on the remaining installments;

i) further, till date, the respondent had not terminated the Agreement and its application made through its subsidiary M/s Helvetica Industries Private Limited for the patent of the process filed with the Indian Patent Office remains pending even now;

j) the respondent has also never demanded, let alone instituted any proceedings for recovery of USD 200,000 paid by it on any ground, even though nearly seven years have elapsed since it made the payment. Had the petitioner defrauded the respondent or even breached the Agreement, the respondent would have certainly, at the very least, demanded refund of the said amount with interest and instituted appropriate legal proceedings therefor, which has not been done, however, in order to wriggle out of its clear liability to pay, the respondent has made mala fide attempts to raise belated and changing defenses at different points of time. In response to the petitioner’s statutory legal notice sent in 2012 under Section 433 read with 434 (1)(a) of the Companies Act, 1956, the respondent claimed, for the first time, that the petitioner had failed to provide technical support; that the deferment of payment for 3 months as sought by the respondent in the email dated 5.03.2010 was only a proposal which the petitioner had not accepted; and that the respondent would make payment on receiving the technical support to enable the respondent to complete Validation;

k) as stated above, none of these contentions had been mentioned in any correspondence between 2009 and 2012. At the contemporaneous time, the respondent had only conveyed its acceptance of the design, made payment of USD 200,000 there against, sought extension of time to make the balance payment and conveyed that it would deduct TDS in the next installment. The defence later sought to be established is rather concocted and false to the knowledge of the respondent;

l) upon filing of the present petition, the respondent, in reply, then raised completely novel defences as an afterthought. The respondent in order to wriggle out of the admission of liability made vide its email of 05.03.2010 stated that the respondent’s representative who had sent the said mail conveying the acceptance of the design and seeking deferment of payment, was not authorized to send the same. The respondent stated that Mr.Kapil Kohli acted in conspiracy with one of the former employees of a subsidiary of the respondent, M/s Helvetica Industries Private Limited, Dr.B.S. Pradhan, with whom Mr.Kapil Kohli had previously formed a company in 2009. The aforesaid defence appears to be palpably false because:

(i) it was never raised prior to filing of the reply to the company petition;

(ii) all the mails of Mr. KapilKohli, including the mail of 05.03.2010, were copied to the Managing Director of the Respondent, namely Mr. Anil Motihar, (who has signed the Reply to the Petition) who never once objected to the same;

(iii) it was the respondent company that made payment to the Petitioner pursuant to the mail of Mr. KapilKohli and as stated above, it has taken no action for recovery thereof. Even taking the respondent’s false and frivolous case at its highest, there was no occasion for the respondent to act in accordance with the assurances of Mr.Kapil Kohli, if indeed he was acting outside his authority and/or for ulterior motives. Thus the respondent’s own conduct belies the contention that Mr. Kapil Kohli lacked authority or was acting in conspiracy with Dr. Pradhan.

m) the respondent further alleged that Dr. Pradhan developed the design for the process to manufacture Atorvastatin in the respondent’s subsidiary M/s Helvetica Industries Private Limited, using the funds of the respondent and then routed the same through the petitioner to sell it to the respondent, as such, the respondent claimed to have been defrauded and therefore, filed an FIR registered 3 years after the filing the present company petition.

n) the said allegation appears to be cooked up to show a dispute when none exists. The petitioner has placed on record its contract with M/s Helvetica Industries Private Limited in 2002 at which time Dr. Pradhan was the majority shareholder. Under that agreement, the Petitioner got M/s Helvetica Industries Private Limited to develop processes for manufacturing pharmaceutical products with a stipulation that the petitioner would own any process patent or other IPR therein. Towards this end, the petitioner paid a sum of USD 205,000 and GBP 75430 to M/s Helvetica Industries Private Limited during the period 2003-04 to 2006-07. Pursuant thereto, M/s Helvetic

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a Industries Private Limited developed Atorvastatin and patent application for the same was first made in March 2007; o) the respondent, on the other hand, became majority shareholder of M/s Helvetica Industries Private Limited only subsequent thereto, pursuant to a Shareholders Agreement dated 07.04.2007 the respondent executed with M/s Helvetica Industries Private Limited acting through its majority Shareholder and Director, Dr. Pradhan. Under the said Shareholders Agreement, it was agreed that so far as Atorvastatin is concerned, the said product and its analogues and any revenues generated out of the same would belong to Dr. B.S. Pradhan as owner thereof, and not to M/s Helevtica Industries Private Limited; p) it is thus clear that the arrangement with M/s Helvetica Industries Private Limited acting through Dr. B.S. Pradhan regarding developing Atorvastatin and the filing of the application for the process of patent predated the Respondent acquiring majority shareholding in M/s Helvetica Industries Private Limited, terms whereof in any event kept Atorvastatin outside its purview. Hence there is no question of the Respondent being defrauded by the petitioner as alleged or at all. These facts were fully within the knowledge of the respondent. The respondent has tried to set up a fake semblance of existence of a bona fide dispute between the parties, when absolutely no dispute of any kind whatsoever exists; 17. In view of the aforesaid undisputed facts it is clear that the respondent’s defence is mala fide and moonshine and clearly an afterthought designed to mislead the Court. It is settled law that to test bona fides of the defence raised by the respondent, it must be seen if the defence was raised contemporaneously at the relevant time. 18. The decisions in Venkatesh Coke and Power Co. v. Simplex Concrete 117 (2005) DLT 594 (DB); In re United Western Bank Ltd (1978) 48 Comp Cas 3778; In re Wastinghouse Saxby Farmer Ltd (1982) 52 Comp Cas 479; and Symphony Services Corp. (India) Private Ltd v. M.G. Flo2Go Technology (2014) 184 Comp Cas 347 discuss this proposition of law. 19. The petitioner has been deprived of the sum USD 350,000 for seven long years and has lost valuable interest thereon. In the circumstances, as the respondent is unable/ unwilling to pay its debts, the petition is liable to be admitted. 20. Consequently, the petition is admitted and the Official Liquidator attached to this Court is appointed as the Provisional Liquidator. He is directed to take over all the assets, books of accounts and records of the respondent-company forthwith. 21. In view of the above, this petition is admitted. 22. Citation be published in the "Statesman" (English edition) and "Jansatta" (Hindi edition) in accordance with Company (Court) Rules, 1959. 23. However, publication of the citation and appointment of the provisional liquidator is deferred and one opportunity is given to the respondent company to pay the amount found already due and payable to the petitioner with interest at the rate of 8% per annum with effect from 26.05.2002 when the statutory notice was served on the respondent company. The amount be paid within one month failing which the petitioner shall be entitled to publish the citation and apply for appointment of the Provisional Liquidator. 24. Ordered accordingly.
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