JUDGMENT 1. - The company petition has been filed by Dawn Communications (P) Ltd., New Delhi (in short, petitioner company) under section 433(e) read with section 439 of the Companies Act, 1956, against Rajasthan Petro Synthetics Ltd., Udaipur (in short, respondent company) with the averments, in short, as follows : The petitioner company was incorporated on 5 June, 1991. In accordance with its main objects, it took over the running and continuing business of the proprietorship firm Dawn Communications, New Delhi, along with all their assets and liabilities. The respondent company appointed Dawn Communications, New Delhi, (proprietorship firm), as their advertising agents. They carried out the advertising work as per orders of the respondent company. Seven bills of total amount of Rs. 75,891.60 were submitted to it. Despite several demands and notices, payment of the said amount has not been made. For the first time, the respondent company raised certain objections against the bills vide letter dated 1 June, 1991. After the incorporation of the petitioner company, notice was served on its behalf also to the respondent company demanding the said amount along with interest. 2. In reply, the respondent company has taken a preliminary objection that no amount was payable by it to the petitioner company when this petition was filed as, admittedly, the petitioner company is claiming the amount from it in respect of certain work got done by it from Dawn Communications, New Delhi, (proprietorship firm), and as such the petitioner company was not a creditor of the respondent company when this company petition was filed. 3. Arguments of the learned counsel for the parties have been heard. 4. Memorandum and articles of association of the petitioner company also contain certificate of incorporation. According to it, petitioner company was incorporated with effect from 5 June, 1991. Minutes of the meeting of the Board of directors of the petitioner company dated 5 June, 1991 (Annexure K) show that letter of consent from the proprietor of Dawn Communication (firm) agreeing to and authorising the transfer had been obtained. The sheet anchor of the case of the respondent company is the letter dated 5 June, 1991, (Annexure J) written by the proprietor of Dawn Communications, Mrs. Vandana Agrawal. The sheet anchor of the case of the respondent company is the letter dated 5 June, 1991, (Annexure J) written by the proprietor of Dawn Communications, Mrs. Vandana Agrawal. It runs as under : "I have agreed to transfer all the assets and liabilities, including sundry credits of the running business of the proprietorship firm-M/s. Dawn Communications to the private limited company under the name and style as M/s. Dawn Communications (P) Ltd. having its registered office at C-11, Nizamuddin West, First Floor, New Delhi-110013, of which I am a shareholder and director, with effect from 1.11.1991. By the power of this document, all the assets and liabilities, including the recover ables, of M/s. Dawn Communications would automatically become the assets and liabilities of M/s. Dawn Communications (P) Ltd. from the aforesaid date of take-over. For and on behalf of Dawn Communications Signed. (Mrs. Vandana Agrawal)"Much emphasis has been laid on the phrases 'with effect from 1.11.91' and 'from the aforesaid date of take-over'. They show that the assets and liabilities of the proprietorship firm, Dawn Communications, would stand transferred with effect from 1 November, 1991, and not prior to it. The petitioner company was thus a prospective creditor of the respondent company when this company petition for winding up of the respondent company was filed on 21 October, 1991. It is clearly provided in clause (b) of subsection (1) of section 439 of the Companies Act that an application for winding up may be filed by a prospective creditor also. Thus there is no force in the said preliminary objection of the respondent company : Ram Kumar Agarwala v. Buxar Oil & Rice Mills Ltd. AIR 1960 Cal 764 , Kudremukh Iron Ore Co. Ltd. v. Kooky Roadways (P) Ltd. (1995) 4 Comp LJ 59 (Karn) : (1986) 60 Comp Cas 1069 (Karn) , Trilok Chand lain v. Swastika Strips (P) Ltd. (1995) 2 Comp LJ 498 (P&H) : (1992) 75 Comp Cas 275 (P&H) , Laxmichand Prakashchand v. Kalyan Solvent Extractions Ltd. (1990) 2 Comp LJ 313 (MP) : (1991) 71 Comp Cas 435 (MP) and Mathura Das Channulal (P) Ltd. v. Inder Lochan Sharma (1966) 1 Comp LJ 303 (All) , relied upon by the learned counsel for the respondent company do not help him. Their facts and circumstances are quite different and distinguishable. Case of prospective creditor was not involved in any of these cases. 5. Their facts and circumstances are quite different and distinguishable. Case of prospective creditor was not involved in any of these cases. 5. Accordingly, the said preliminary objection raised by the respondent company is overruled. *******