JUDGMENT 1. - This company petition has been filed under section 439 read with section 433(e), Companies Act, 1956 (hereinafter to be called the Act') for winding up Rajasthan Petro-Synthetics Ltd., RIICO Industrial Area, Sukher (Udaipur) (hereinafter to be called the respondent-company). 2. The case of the petitioner-company, in short, is as follows : It was incorporated on 5 June, 1991, and it took over running business of the proprietorship firm, Dawn Communications, New Delhi, along with all its assets and liabilities. The respondent company was incorporated on 21 February, 1983, as a public limited company. By its letter dated 28 February, 1990, it appointed Dawn Communications, New Delhi, as their advertising agents and requested them to prepare designs and proposals for various items at the earliest. Accordingly, job work was done and six bills (Annexure D) of the total amount of Rs. 75,891.60 were submitted to the respondent company. The bills clearly provided that discrepancies, if any, be brought to the notice of the firm within three days of the presentation of the bill and delayed payments will attract interest @ 24%. The matter regarding the payment of the bills was discussed by the managing director of the petitioner company with Shri Anil Aeron, General Manager (Marketing), of the respondent company. The bills were corrected during the discussions as were agreed upon in between them. Payment orders : 'rate checked, O.K., verified amounts, please pay' were passed on them. The total amount of the bills endorsed and accepted comes to Rs. 71,876.60. Photostat copy of the bills accepted and passed bills are Annexure 'E'. Despite it, their payment have not been made. On 18 May, 1990, the director of the petitioner company wrote letters to the respondent company. In its reply dated 1 June, 1991, the respondent company raised unfounded objections arid bogus dispute. Despite the service of the notice served under section 434 of the Act, the respondent company has not made any payment. 3. In its reply, the respondent company admits that Dawn Communications was their agent, said order was placed, goods were received along with bills (Annexure D), notice (dated 18.5.91) (Annexure F) and statutory notice dated 19.7.91 (Annexure H) were received. 3. In its reply, the respondent company admits that Dawn Communications was their agent, said order was placed, goods were received along with bills (Annexure D), notice (dated 18.5.91) (Annexure F) and statutory notice dated 19.7.91 (Annexure H) were received. It has further been averred by it that the goods supplied did not conform to the order placed, rates were not settled, the petitioner company was requested to furnish necessary particulars of the materials used and to got the matter settled, and it is ready to pay the amounts of the bill after making deduction of Rs. 40,993.60. It has also been averred that the company petition is not maintainable, there is a bona fide dispute in between the parties with regard to its liability, the office of the respondent company who passed the bills was not authorised to do so, there was no contract in between the parties with regard to the rates of the goods supplied and the company petition has been filed prior to the transfer of the business, assets and liabilities to M/s. Dawn Communications (P) Ltd. 4. The preliminary objection raised by the respondent company that the company petition has been filed by the petitioner company before the transfer of the business, assets and liabilities of the proprietorship firm-M/s. Dawn Communications (P) Ltd. to the petitioner company, has been decided in favour of the petitioner company, vide order dated 8 April, 19942, holding that a prospective creditor can also maintain such a company petition. 5. Another preliminary objection was raised during the final arguments that no notice was served by the petitioner company under section 434(1) of the Act and as such, it cannot be said that the respondent company is unable to pay its debt. Admittedly, notice dated 18.5.91 (Annexure F) was served by the creditor (M/s. Dawn Communications (P) Ltd.) upon the respondent company and reply dated 1.6.91 (Annexure G) was given by it. No objection has been raised in it that notice could not be given by them. Section 434 of the Act does not require that notice should be given by the petitioner who files the company petition and cannot be given by the creditor who has assigned his debt. Moreover, notice dated 19 July, 1991 (Annexure H) was served by Shri Sushil Dutt Sulman, Advocate for and on behalf of the petitioner company upon the respondent company. Moreover, notice dated 19 July, 1991 (Annexure H) was served by Shri Sushil Dutt Sulman, Advocate for and on behalf of the petitioner company upon the respondent company. Its reply dated 13 August, 1991 (Annexure I) was given to Mr. Sushil Dutt, Advocate. Section 439(1)(b) clearly provides that an application for winding up may be moved by a prospective creditor. When a petition for winding up can be moved by a prospective creditor in a company court,notice of demand can also be served by him. Moreover, it has not been shown by the respondent company as to how it has been prejudiced by the said notice. The respondent company states in its reply dated 13 August, 1991 (Annexure I) given through its advocates Mrs. Kitty Kumaramangalam as under : "(1) Your client M/s. Dawn Communications (P) Ltd. through Mrs. Vandana Agrawal approached Ms. R.P.S.L. for various types of work as mentioned in the bills submitted by your client. (2) Your client executed the job after approval of the matter by my client, but as regards the rates of the order, it was never confirmed by my client..... .. Thus there is no force in the said preliminary objection. 6. It is not in dispute that Dawn Communications (P) Ltd. executed orders of the respondent company by supplying desired goods to them along with their six bills dated 17.11.90 (Annexure D) for the total amount of Rs. 75,391.60 and no payment has been made to the petitioner company who subsequently acquired the rights from the supplier M/s. Dawn Communications (P) Ltd. for the recovery of the same. After the receipt of the letter dated 18.5.91 (Annexure F) of the petitioner company, the respondent company raised dispute about the rate, supply of statement of break-up of expenses and non-removal of the defects through their letter dated 1.6.91 (Annexure G). It has been observed in Pradeshiya Industrial and Investment Corporation of U.P. v. North India Petro-Chemical Ltd., (1994) 2 comp LJ 50 (SC) at page 57, para 33, of Comp LJ : (1994) 1 Judgement Today at pages 584-585, para 32 , as follows : "It is beyond dispute that the machinery for winding up will not be allowed to be utilised merely as a means for realising its debts due from a company. In Amalgamated Commercial Traders (P) Ltd. v. Krishnaswami (A.C.K.) (1965) 35 Comp Cas 456 (SC) , this court quoted with approval the following passage from Buckley on the Companies Act, (13th Edition, page 451) : "It is well-settled that winding-up petition is not a legitimate means of seeking to enforce payment of the debt which is bona fide disputed by the company. A petition presented ostensibly for a winding-up order, but really to exercise pressure will be dismissed, and under circumstances may be stigmatised as a scandalous abuse of the process of the Court." 7. The only question for consideration in this case is whether the payment of the said six bills is bona fide disputed by the respondent company. The following facts and circumstances leave no manner of doubt that the dispute raised by the respondent company is not bona fide : A. It is admitted by the respondent company that along with the desired goods, six bills were received by it whose photostat copies are Annexure E. The last note given in these bills states 'discrepancies, if any, must be brought to our notice in writing within three days of presentation of the bill'. Section 42, Sale of Goods Act provides that the buyer is deemed to have accepted the goods when, after the lapse of reasonable time, he retains the goods without intimating to the seller that he has rejected them. There is nothing on the record to indicate that any discrepancy was brought to the notice in writing to M/s. Dawn Communications or petitioner company prior to the service of the registered notice of demand dated 18.5.91 (Annexure F). B. (1) Para No. 11 of the company petition runs as under : "That the matter in respect of payment of the said bills was discussed by Shri V.M. Agarwal, managing director of the petitioner-company with Shri Anil Aeron, General Manager (Marketing) of the respondent company and wherever agreed, the bills were amended during the discussion only and thereafter, the bills were approved for payment, having been duly checked, accepted and confirmed by the General Manager (Marketing) of the respondent company. The respondent company duly passed the orders for payment on the respective bills by endorsing them with the following words : "Rate checked. O.K. Verified. The respondent company duly passed the orders for payment on the respective bills by endorsing them with the following words : "Rate checked. O.K. Verified. Accounts please pay." (2) Relevant portions of para No. 11 of the written reply of the company petition run as under : ....... The petitioner has referred to the words 'rates checked O.K., verified etc.' Of-course, one of the officers of the company wrote these words on the bills, but the management of the respondent company, who is the final authority regarding the acceptance of the liability, did not agree with the view of that officer and disputed the correctness of the rates charged in the bills. The acceptance of the correctness of the bills or the rates was never communicated by the respondent company to M/s. Dawn Communications. The remark referred to by the petitioner in the said bills is a remark made by one officer in the process of the final assessment of the bill." (3) The General Manager (Marketing), Anil Aerson sent reply dated 1 June, 1991 (Annexure G) to M/s. Dawn Communications. Its clauses (1) to (4) run as under : (i) The rates as mentioned in the bills, have never been approved by us, as quoted in your letter. (ii) We have repeatedly requested you to submit the break-up of your expenses as the rates quoted by you have been found exorbitant. Inspite of your reassurances, you have not submitted the same. (iii) Even during the last visit to us, you were required to give us the detail as required by our Accounts Department, but you instead assured that you would get back to us in couple of days time which you have not done till date. (4) Following orders were passed in the invoices whose photostat copies have been filed as Annexure-E). (a) Invoice No. 084/0 for Rs. 16,695. 'Rate charged O.K. Quantity received 3,180 Nos. A/c please pay bill passed for Rs. 16,695, Signed. 19/2." (b) Invoice No. 083/90 for Rs. 27,300 'Rate charged O.K. Verified. Quantity received 4,140 pcs. Pay as per quantity received. Signed 19/2'. Bill passed for Rs. 26,910." (c) Invoice No. 082/90 for Rs. 12,600 A/c. Please pay. Passed as under : Large size 4' x 3' @ Rs. 250 = Rs. 3,000 4 small size 2' x 3' @ Rs. 250 = Rs. 6,000 1,000 invitation cards = Rs. 1,600 Total = Rs. Pay as per quantity received. Signed 19/2'. Bill passed for Rs. 26,910." (c) Invoice No. 082/90 for Rs. 12,600 A/c. Please pay. Passed as under : Large size 4' x 3' @ Rs. 250 = Rs. 3,000 4 small size 2' x 3' @ Rs. 250 = Rs. 6,000 1,000 invitation cards = Rs. 1,600 Total = Rs. 10,600 Sd ............. (d) Invoice No. 079/90 for Rs. 13,650 Rate charged okay. Verified. A/c. Please pay. Bill passed for Rs. 13,650, Sd. 19/2" (e) Invoice No. 073/90 for Rs. 4,021.60 'Rate charged okay. Verified A/c. Please pay. Bill passed for Rs. 4,021.60 Sd. 19/2". Admittedly, these orders on the invoices were passed by Anil Aeron, General Manager (Marketing) on 19.2.91 who gave the reply dated 1 June, 1991 (Annexure G). They (orders,passed on the bills) falsify the reply whose clauses (i) to (iv) have been quoted above. This fact alone shows that the dispute raised is not at all bona fide. It is false and frivolous. C. The name of the authority who was competent to finally pass the bills has not even been disclosed. D. Last para of the written reply (page Nos. 74-75) states : 'The respondent company is still prepared to pay M/s. Dawn Communications, if the said concern accepts the payment of the bill after reducing the same by Rs. 40,993.60.' It is not clear as to how this figure of Rs. 40,993.60 has been arrived at M.S. Jawar, Manager (Finance) of the respondent company has filed his affidavit in support of the written statement of the respondent company. In para No. 2 of the affidavit he deposed, 'The facts stated in the reply are true and correct to my knowledge based on the records of the company.' Admittedly, no record of the respondent company has been produced. 8. In view of these facts, circumstances and authoritative observation of the Hon'ble Supreme Court, I have no manner of doubt to hold that the dispute raised for the payment of the bills for the total amount of Rs. 73,001.60 (16,695 + 26,910 + 12,600 + 13,650 + 4,021.60 + 1,125) is not bona fide. The company petition deserves to be accepted. 9. However, the respondent company may be given an opportunity to make payment of Rs. 73,001.60 (16,695 + 26,910 + 12,600 + 13,650 + 4,021.60 + 1,125) is not bona fide. The company petition deserves to be accepted. 9. However, the respondent company may be given an opportunity to make payment of Rs. 73,001.60 to the petitioner company with interest @ 15% per annum from the date of the supply of the said goods to the date of payment. 10. Accordingly, it is ordered that if the respondent company fails to make payment of Rs. 73,001.60 with interest as said above to the petitioner company through account payee draft in the name of the petitioner company within three months from today it will stand dissolved. The respondent company will make payment of the costs of this case to the petitioner company which are assessed at Rs. 5,000. *******