This is an application under sections 433/434/439 of the Companies Act, 1 956 praying for winding up of the Jagduar Tea and Trading Company Pvt Ltd due to the inability of the company to pay its debts. 2. The facts and circumstances leading to institution of the present proceeding are sketched herein. The two petitioners are partners of a partnership firm known as M/s Apex Industries. The respondent is a private limited company. The Managing Director of the respondent/company vide communication No. JH92/0426 dated 4.4.92, placed orders with the petitioners for supply of 2,000 (two thousand) sets of tea chests and 1,000 (one thousand) pieces of jute bags for the season 1992 in two consignments - one in the last part of April, 1992 and the other in the month of July, 1 992. By the said communication, the Managing Director requested the petitioners to supply one thousand sets of 40 x 50 x 60 CMs of ISI marked complete tea chests and five hundred numbers of jute bags with polyliner as first consignment and another one thousand sets of 40 x 50 x 60 CMs size of ISI marked complete tea chests and five hundred numbers of jute bags with Polyliner as second consignment. Pursuant to the above order of the Managing Director of the respondent/company dated 4.4.92, the petitioners supplied one thousand sets of ISI marked tea chests of 40 x 50 x 60 CMs in size complete with panels, fittings and Aluminium linings vide Challans Nos 605 dated 25.9.92, 606 dated 28.9.92 and thousand sets of ISI marked battens of the sizes of 40 x 50 x 60 CMs vide Challan No. 603 dated 16.9.92. The respondent/company duly received the said tea chests and acknowledged receipt of the same. The. petitioners thereafter sent Bill No.JTE/002/92-93 dated 28.9.92, by registered post to the respondent/ company for Rs.70,720 (Rs seventy thousand seven hundred twenty) only for supply of one thousand sets of ISI marked tea chests of the requisite size complete with panels, fittings and Aluminium linings, and another bill bearing No.JTE/002A/92-93 dated 28.9.92 by registered post to the respondent/company for Rs. a 12,480 (Rs twelve thousand four hundred eighty) only for supply of one hundred sets of ISI marked tea chest battens. a 12,480 (Rs twelve thousand four hundred eighty) only for supply of one hundred sets of ISI marked tea chest battens. According to the petitioners, those bills were received by the respondent/company in the usual course of business, but the respondent/company neglected and failed to pay the said bills amounting to Rs.83,200 (Rs eighty three thousand two hundred) only in spite of repeated demands and requests. It is further stated by the petitioners that the aforesaid amount of Rs.83,200 was inclusive of the central sales tax amounting to Rs. 3,200. The petitioners contended that the respondent company was to pay interest at the rate of 18% per annum from the date of the bill and was also to submit inter State Sales Tax Declaration Form and sales tax in lieu thereof. Vide communication dated 22.5.93, the Managing Director of the respondent/company informed the petitioners that it would make payment of the bills of the petitioners dated 28.9.92 immediately on completion of the procedural formalities. But despite the aforesaid information, the Managing Director of the respondent/company neglected to pay the outstanding bills of the petitioners. Thereafter a notice under section 434 of the Companies Act, 1956 was served on the respondent by registered post with A/D at its registered office demanding payment of Rs.83,200 together with interest at the rate of 18% per annum from 28.9.92 to 28.8.94, amounting to Rs.28,704 coming to an amount of Rs.l, 11,904 (Rs one lakh eleven thousand and nine hundred four) only in-total. Despite receipt of the aforesaid communication, the respondent/company did not make any reply nor did it pay any of the bills of the petitioners. Accordingly, the petitioners initiated the present proceeding. 3. By an order dated 30.10.95, the company Court issued notice calling upon the respondents to show cause as to why the application was not to be allowed. The respondent did not file any objection. The company Court by its order dated 5.2.96, ordered the petitioners to make advertisement as per the Company Court Rules. Thereafter in due course the matter was placed for hearing. However, the respondent/company filed its objection/affidavit on 19.3.96. The respondent did not file any objection. The company Court by its order dated 5.2.96, ordered the petitioners to make advertisement as per the Company Court Rules. Thereafter in due course the matter was placed for hearing. However, the respondent/company filed its objection/affidavit on 19.3.96. In that affidavit, the respondent sated that the Management of the respondent/company was taken over by the Sonari Tea Estate by a Memorandum of Understanding dated 25th December, 1992 and the company was represented by Shri Ajit Khound, the Managing Director and Shri Mrinal Chandra Khound, Assistant Managing Director and a new Board of Directors was constituted and the actual management was taken over in March, 1993. In the affidavit, the respondent further pleaded that after taking over the management, it was necessary to conduct check and enquiry in respect of the affairs of the previous management. While doing so, it was found that at the garden at Jorhat, no delivery of materials (chests) as claimed by the petitioners was ever made in July, 1992 or thereafter; even the challans as mentioned and the stock at the garden was not shown in the receipts. The company management, therefore, by its communication dated 22.5.93, informed the petitioners that they had taken over the management of the garden in March, 1993 and necessary accounts and pending liabilities were under scrutiny. On completion of the procedural works, the respondent/company found that the claim of the petitioners was baseless except the letter dated 10.2.92. It was further alleged that the company's accounts and records did not show any payment to the Roadways (carriers) against the consignments and stated that the challans did not reflect any delivery of such consignments having been made, nor was there any receipt of the materials. The respondent further stated that the bills dated 28.9.92, showed that the C/Note and dated 1.10.92, when the Consignment Notes were not even been and tried to b find discrepancies with the bills of the petitioners. The respondent/company disputed the claim of the petitioners and submitted that since the petition involved disputed questions of fact, the same was liable to be dismissed. To the aforesaid affidavit of the respondent/company, the petitioners filed a reply and stated that the respondent/company was an existing company and the liabilities of the respondent/ company cannot be avoided as agreed in the Memorandum of Understanding. To the aforesaid affidavit of the respondent/company, the petitioners filed a reply and stated that the respondent/company was an existing company and the liabilities of the respondent/ company cannot be avoided as agreed in the Memorandum of Understanding. The petitioners in the affidavit-in-reply, referred to a communication of Shri A. Khound, Ex Managing Director of the respondent/company to the Managing Partner of the Sonari Tea Estate for settling the outstanding dues of the firm of the petitioners and a copy of the same was sent to the petitioners. The petitioners further sent a copy of the said communication to the respondent/company vide their letter dated 8.10.93. The letter referred to above written by the Ex-Managing Director of the respondent/company to one of the Managing Partners of Sonari Tea Estate, reads as follows : With reference to the subject cited above I am to inform you that the parties with whom we have our liabilities gives me trouble day and night every day regarding their payment. As per our Memorandum of Understanding you have purchased our shares with all liabilities of the company and accordingly you have already deducted the all liabilities from our total dues. Therefore, I request you kindly to relieve me from the trouble which they gives me day and night regularly by making the respective payments at your convenience. Hope you will comply with my request and do the needful at the earliest.” The petitioners stated that the defects now raised by the respondent is only a ploy to evade/resist the genuine plea of the petitioners filed an additional affidavit on 26th October, 1993 and placed certain materials on record, viz, the communication dated 27.6.98, addressed to the petitioners enclosing a list of liabilities of the respondent/company which was submitted to the Managing Partner of the Sonari Tea Estate by the Ex-Managing Director of the company at the time of handing over the charge. In the aforesaid list of liabilities, there are 8 liabilities under the heading of old liabilities and the liability of the respondent to pay the petitioners' firm has shown to be as Rs. 83,120.00 besides the liability to pay Bonus. The list also showered liabilities which were already paid. The said affidavit was served on the respondent through its counsel. 4. Mr. 83,120.00 besides the liability to pay Bonus. The list also showered liabilities which were already paid. The said affidavit was served on the respondent through its counsel. 4. Mr. BP Kataky, learned counsel for the petitioners, after referring to the materials on record, submitted that the respondent/company is unable to pay its debts and, therefore, this Court is to pass appropriate orders as per law. Mr Kataky submitted that the petitioners' firm is a creditor and, therefore, the application under section 434 of the Companies Act, 1956 is maintainable. The dispute raised by the petitioners is not a frivolous one. 5. Mr. JP Sharma, learned counsel appearing on behalf of the respondent, a however, strenuously objected to the maintainability of the petition. Mr. Sharma, the learned counsel, firstly submitted that since the petitioners are partners of an unregistered firm, it was for the petitioner to show that the application was maintainable in view of the bar as envisaged under section 69 (2) of the Indian Partnership Act, 1932. Mr. Sharma, the learned counsel for the respondent, thereafter pointing to the affidavit submitted that whether a company is unable to pay its debts, is a question of fact and since the respondent raised a bona fide dispute, no winding up order should be made and the petitioners should be asked to send its report. 6. Whether the present petition is barred by section 69 (2) of the Indian Partnership Act, 1932 or not, one has to look to the provisions of that clause which reads as follows : 69. (2) No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm.” Section 69 of the Indian Partnership Act speaks about the effect of non- registration of a firm. To attract the provisions of section 69 (2), certain conditions must be fulfilled that the plaintiff on the date of the suit was not a registered firm under the Indian Partnership Act and the names of the partners are not shown in the Register of Firms as partners of the firm on the date of the suit and such firm or partners mentioned in the sub-section must be suing the defendant/third party; and lastly, the suit instituted is to be for enforcement of a right arising out of a contract of the firm with a third party. The present proceeding is not a suit, but a proceeding under Chapter II of the Companies Act, 1956. The petitioners have taken aid of section 439 of the Companies Act, 1956 for winding up of the company due to inability of the respondent/company to pay its debts. Section 439 of the Companies Act, 1956 contains the provisions as to the application for winding up of a company. Subject to the provisions of the Act, an application for winding up of a company can be filed by any creditor or creditors, including any contingent or her prospective creditor or creditors. The petitioners have come to this Court as creditors due to inability of the respondent/company to pay its debts. On a survey of the provisions of the Companies Act, 1956, more particularly provisions contained in section 439 (1) (b) of the Act, 1956 read with section 69 (2) of the Indian Partnership Act, 1932, the present petition cannot be dismissed as not maintainable due to the embargo, imposed by section 69 of the Indian Partnership Act, 1932 since the petitioners have come up before this Court for enforcement of its right conferred by section 439 (1) (b) of the Companies Act, 1956. The respondent/company no doubt specifically raised a dispute about the claim of the petitioners. But if there is a bona fide dispute, it is not appropriate for the company Court to proceed with the winding up proceeding instead of directing? the parties to resolve their dispute in a civil Court. It all depends on the facts and circumstances of the case. Admittedly, there was an order from the respondent/ company for supply of certain articles vide communication dated 4.4.92, intending for articles. This fact is/was never disputed. the parties to resolve their dispute in a civil Court. It all depends on the facts and circumstances of the case. Admittedly, there was an order from the respondent/ company for supply of certain articles vide communication dated 4.4.92, intending for articles. This fact is/was never disputed. Petitioners submitted that it is the bills for supply of the articles which is in dispute. No objections were so far raised against those bills. The petitioners served notice dated 30.8.94, which was received by the respondent but no reply was sent. Besides, no objection about non-receipt of the articles was received till institution of the present proceeding. Even there also, the respondent sought time for arranging to clear up all its debts. Situated thus, this Court has only to consider as to whether there is prima facie evidence in support of the claim of the petitioners. 7. On the face of the materials on record including the communication dated 22.5.93, sent by the Managing Director after taking over the management, and the communication dated 10.2.92 written by the petitioners' firm, save and except poor denial, there is no material to show that the dispute raised is a bona fide dispute. The respondent/company, even before this Court, failed to produce the extract copy of its ledger and balance sheet to corroborate its assertions in defence. 8. On overall consideration/examination of the matter, the ground of defence taken by the respondent/company, in my view, is not substantial but raised a device. From the facts and surrounding circumstances, it is held that the company is unable to pay its debts and accordingly order for winding up of the company. This order for winding up the company is held in abeyance for six months to enable the company to clear up its debts within the aforesaid period. The respondent company during the aforesaid period shall not dispose the assets of the company. In the event, the respondent company fails to liquidate its debts within a period of specified, the order for winding up shall become operative on the expiry of the said period. 9. The petition stands disposed.