G.R. Majitha, J.
1. This is a petition under Section 433 read with Section 439 of the Companies Act, 1956 (for short 'the Act'), for the winding up of the respondent-company.
2. The brief facts are: On January 27, 1987, an agreement was arrived at between the parties. Pursuant to this, the petitioners supplied 100 trucks of bagasse. The rate per quintal was fixed at Rs. 24 exclusive of sales tax. Rs. 20,000 was paid by way of bank draft as advance. The total payment against supply comes to Rs. 3,95,521.36. The representative of the petitioner-company met the managing director of the respondent-company for payment of the outstanding amount and it was promised that the same would be sent by July 27, 1987. Reminders were sent on July 28, 1987, August 11, 1987, and August 17, 1987, but they were of no consequence. On August 29, 1987, the respondent-company intimated to the petitioners that the payment will be released very shortly. The respondent-company, however, did not make the payment necessitating the issuance of notice under Section 434 of the Act. Despite notice no payment was made. The petitioners made a claim for the principal amount and interest at the rate of 18 per cent. per annum till January 31, 1988, which comes to Rs. 53,605.52.
3. The respondent in its reply took up the preliminary objection that the affidavit filed in support of the company petition was not in conformity with the rules, namely, the Companies (Court) Rules, 1959, and the petition was liable to be dismissed on this score alone. The respondent further submitted that after the supply of 100 trucks of bagasse, the petitioner-company wanted to send more supplies which the respondent-company was finding difficult to accept. They agreed to accept the extra material on the understanding that the payment would be deferred for 2/3 years. The material which was supplied over and above the agreed quantity of 100 trucks of bagasse was not in proper form and it was decomposed and was of no use to the respondents. The defects were pointed out to the petitioners and the latter agreed to the abatement of the price.
4. The following facts stand proved on the file: The respondent-company, vide letter dated January 27, 1987, confirmed having contracted to purchase 100 truckloads of loose bagasse at the rate of Rs. 24 per quintal plus the sales tax applicable. A sum of Rs. 50,000 was paid as advance. On August 29, 1987, when the petitioner-company asked for payment, it was confirmed by the respondents that they were making arrangements to send the payment towards the bills submitted by the petitioners. On November 10, 1987, the petitioners emphasised that the respondents must give a definite schedule of payment. On November 10, 1987, the respondents again reiterated that they were arranging for the remittance. On November 5, 1987, the respondent-company confirmed having received a letter, bearing No. 5462 dated October 29, 1987, through Ganga Bishan Kohli. Form 3-B, bearing Nos. 473430 and 473431, for bagasse despatches during April to June, 1987, and also for July, 1987, were sent by the respondent-company to the petitioners. On December 18, 1987, the respondents intimated to the petitioners to send the statement of accounts showing that a sum of Rs. 3,37,167.56 was outstanding from the respondents. A notice under Section 434 of the Act was receive'd by the respondents and a reply was sent on March 30, 1988. In the subsequent communication, the respondent-company tried to highlight that the excess supplies of bagasse were decomposed and the supply was accepted as per the terms and conditions mentioned in the letter dated February 27, 1987. The sequence of events given supra clearly indicates that the defence now sought to be raised is an afterthought. Till November 5, 1987, the respondent-company did not dispute that the material supplied by the petitioners was not as per the specifications or that it was decomposed or that for the excess material supplied over and above the quantity provided in the original letter dated January 27, 1987, the payment was not to be made immediately on supply of bagasse but after 2/3 years as now alleged. On January 6, 1988, the petitioner-company supplied the statement of accounts to the respondents and even when the statement of accounts was asked for no such grouse was made as is now being unfolded. The respondents for the first time on November 5, 1987, stated that the bagasse which was supplied over and above the contractual quantity was decomposed. Presumably, when the petitioners were pressing for the payment and the respondents could not arrange for it, in anticipation of legal action likely to be taken against them, they cooked up the defence in this letter.
5. The respondents at no point of time disputed the correctness of the statement of accounts submitted by the petitioner. This is an indication for coming to the conclusion that there is no dispute regarding the amount due. There can be no dispute that a winding-up petition is maintainable if the company is unable to pay its debt and the relief in pursuance of the winding-up petition can only be refused if the debt is bona fide disputed and the defence of the company is in good faith and one of substance; the defence is likely to succeed in point of law when the company adduces prima facie proof of the facts on which the defence depends. The respondent-company has- miserably failed to do so. As observed earlier, the defence now sought to be raised is an afterthought and raked up to defeat the claim of the petitioners. The respondent-company in spite of repeated demands by the petitioners neglected to pay the amount due and it prima facie establishes their inability to pay it.
6. For the reasons stated, I hold that a sum of Rs. 3,37,167.56 is due from the respondents which they have failed to pay in spite of demands. I direct the respondents to pay this amount within one month from today failing which the company petition will be advertised in conformity with Rule 24 of the Companies (Court) Rules. The company petition will be advertised in The Tribune, Punjabi Tribune and in the Punjab Government Gazette.
7. The petition to come up for further orders on May 19, 1989.