The trustee for the holders of debentures is deemed to be a creditor within the meaning of section 439(1)(b) of the Companies Act, and the company's solvency is relevant only to ascertain if refusal to pay debt is a result of a bona fide dispute as to the liability or whether it reflects inability to pay.

Prakash Shrivastava, J.

1. This petition under section 433(e) and (f) read with section 434 and 439 of the Companies Act, 1956 is at the instance of City Bank seeking winding up of the respondent M/s. Plethico Pharmaceuticals Ltd. (for short "Company"). The case of the petitioner in brief is that by Offering Circular dated 18-10-2007, the Company had offered USD 75,000,000 (United States Dollar -Seventy Five Million only) Zero coupon convertible bonds due 2012. The Company had entered into an agency agreement on 22-10-2007 with, the petitioner and others, thereafter appointing the Principal Paying Agent to act for and on behalf of the Trustees in respect of the bonds in accordance with the provisions of the conditions and the Agreement. The Company had also entered into the trust deed dated 22-10-2007 with the petitioner in respect of the bonds, appointing the petitioner as Trustee to act for and on behalf of the bondholders. As per the trust deed, the Company had covenanted to unconditionally pay or procure to be paid to or to the order of the petitioner at London in US Dollar in immediately available freely transferable funds, the principal amount of the bonds outstanding and becoming due for redemption or repayment, one New York business day prior to any date when the bonds or any of them become due to be redeemed or repaid in accordance with the terms and conditions together with any applicable premium and interest. As per the Offering Circular and the condition, the bonds were issued at 100 per cent of the principal amount on 22-10-2007 with a maturity date of 23-10-2012 and each bond was to be redeemed in US Dollars on maturity date at 145.9339 per cent of its principal amount. Accordingly the Company was required to pay an amount of USD 109,450,425 one business day before the maturity date. The Company had failed to pay the amount on the maturity date, instead it had convened a general body meeting on 5-4-2013 of its shareholders inter alia for increasing the borrowing limits of the company and accordingly the resolution was passed. Since the default had occurred in repayment, therefore, on the instructions of the bondholders holding not less than 25% of the aggregate principal amount outstanding of the bonds dated 7-5-2013 (First Note-holder Direction), the petitioner sent a notice of event of default dated 17-5-2013 to the Company but in spite of the receipt of notice, the Company did not make payment of the outstanding amounts. The attempt of the Company to modify the trust deed and the condition, inter alia, to extend the maturity date by convening a meeting of the bondholders had remained unsuccessful. The Company in its annual report for the financial year 2011-12 under the caption 'Unsecured Borrowing' has set out an aggregate figure of INR 4,81,25,20,000/- representing an amount due under the bonds as on 31-12-2012, showing the admission of liability by the respondent-Company. The petitioner had called upon the Company to repay the debts through the notice of demand dated 17-5-2013 in terms of section 434 of the Act. The statutory demand notice was duly served on the Company at its registered office by registered post, by courier and also by Fax. The Company had sent the reply through its advocate on 12-6-2013 raising several objections, which was duly responded by the petitioner by sending their Advocate's letter dated 13-7-2013. Some further exchange of letters had taken place. The Securities Exchange Board of India (SEBI) on 4-6-2013 had passed a restraining order against the Company for failing to comply with the requirement of minimum public shareholders. As per the petitioner, the Company is liable to pay to the petitioner, on behalf of the bondholders, in aggregate a sum of USD 118,206,459 under the Bonds which includes default interest @ 9% per annum till repayment. Accordingly the petitioner in its capacity as Trustee on behalf of the bondholders, has filed the present winding up petition.

2. The