JUDGMENT 1. - Instant company petition has been filed under sections 433 and 434 of the Companies Act, 1956 read with rule 95 of the Companies (Court) Rules, 1959, seeking winding up of M/s. Channel 99- Media Networks P. Ltd. ("the respondent-company"). 2. As alleged, the respondent-company was incorporated on May 2, 2008, with the Registrar of Companies, Rajasthan and as per its memorandum and articles of association of the company, main objects to be pursued on its incorporation, inter alia, are to entertain and inform the people of the Rajasthan State and the rest of India through television broadcasting of authentic local culture and exhaustive, up to date news and current affairs ; and to carry on the business to establish, run, produce, promote, purchase, construct, manage TV-channels, cinematography theatres, for hiring out or exhibiting cinema films or for staging drama, dances, musical and other advantageous programmes from time to time. 3. It has been averred that the respondent-company approached the petitioner-company to provide internet and telecommunication services, and the uplinking services to broadcasters of the television channels. The respondent-company being a broadcaster placed a purchase/customer order for a DGE circuit, a Fibre Link from the office at M/s. Channel-99 Media Network P. Ltd., to Tata Communications Ltd. (petitioner-company) for a capacity of 4.0 Mbps for a period of one year and the said link/circuit was delivered as per the terms and conditions of the said order on April 9, 2009. The petitioner-company also provided ILL (Internet) circuit for a capacity of 2 Mbps since April 15, 2009 and ILL (Internet) circuit for a capacity of 1.5 Mbps since January 29, 2010 ; but payments, as alleged, in terms of their invoices sent from time to time, were not made. 4. However, both the parties (the petitioner and respondent-companies) entered into a memorandum of settlement (annexure 8) on March 15, 2010 and finally it was agreed that the respondent-company would make payment of a total sum of Rs. 55,18,905 (rupees fifty five lakhs eighteen thousand nine hundred and five only) to the petitioner-company (Tata) as per payment schedule (annexure A), which discloses that 12 postdated cheques (Union Bank of India) each of Rs. 4,59,908 payable on 5th of each month commencing from April, 2010 till March, 2011 were handed over to the petitioner-company (Tata). 55,18,905 (rupees fifty five lakhs eighteen thousand nine hundred and five only) to the petitioner-company (Tata) as per payment schedule (annexure A), which discloses that 12 postdated cheques (Union Bank of India) each of Rs. 4,59,908 payable on 5th of each month commencing from April, 2010 till March, 2011 were handed over to the petitioner-company (Tata). It has been averred that when four cheques were presented but returned by the Union Bank of India with the endorsement want of sufficient funds in bank account of the respondent-company and after four post-dated cheques on being presented were dishonoured, as informed by the bank that the respondent-company instructed its bank not to make payments against postdated cheques referred to in the schedule of payment (annexure A). 5. As alleged, when efforts made by the petitioner-company having failed and continuously frustrated by the respondent-company with a sole object to avoid payment to its creditors, the statutory notice was sent on June 29, 2010, under sections 433 and 434 of the Companies Act by registered post (annexure 10), asking them to make payment of outstanding dues of Rs. 55,18,896 along with interest payable with effect from March 15, 2010, till actual payment, but despite legal notice served, neither any reply thereto was sent by the respondent-company nor payment of outstanding dues was made. Hence instant company petition. 6. Notices were issued by the court vide order dated September 23, 2010, pursuant to which, reply has been filed by the respondent-company, wherein this fact has not been controverted that they had business dealings with the petitioner-company and that memorandum of settlement (annexure 8) was signed on March 15, 2010 and cheques were also handed over to the petitioner-company as per payment of schedule (annexure A) annexed to the memorandum of settlement (annexure 8) and on presentation of cheques, they were dishonoured for want of sufficient funds in the bank account of the respondent-company. 7. However, objection raised by the respondent-company is that a condition was incorporated in the memorandum of settlement (annexure 8) that final payment would be subject to reconciliation and confirmation but without reconciliation, cheques were submitted by the petitioner-company for its encashment to the bank without any intimation to the respondent-company, as a result, its bank was instructed to stop payment of cheques. In support, counsel for the respondent-company, placed reliance upon the decisions of the apex court in IBA Health (I) P. Ltd. v. Info-Drive Systems Sdn. Bhd. (2010) 159 Comp Cas 369; [2010] 10 SCC 553 and Vijay Industries v. NATL Technologies Ltd. (2009) 147 Comp Cas 490; [2009] 3 SCC 527. 8. However, it is relevant to observe that in the course of submissions, on August 4, 2011, counsel for the respondent-company on instructions informed that they are ready to settle the dispute, which was seriously opposed on behalf of the petitioner-company, but this court considered it appropriate to grant time for amicable settlement and directed counsel for the respondent-company to ask his client to remain present on the next date (August 18, 2011). Today, counsel for the petitioner-company, submits that the respondent-company never came forward for amicable settlement, pursuant to the contention made on the last date (August 4, 2011). Despite the court having granted time vide order dated August 4, 2011, to amicably settle the dispute but, it could not be finally resolved and the matter was taken up. 9. From the material on record, no documentary evidence has been placed on record along with the reply ; in regard to the plea of defence taken by the respondent-company for any reconciliation being controverted and disputed by the petitioner-company ; rather despite the memorandum of settlement being signed by the respondent-company on March 15, 2010, having agreed to make payment through post-dated cheques are handed over as per payment schedule (annexure A) appended thereto (annexure 8), the payment was not made rather post-dated cheques as per payment schedule on being presented to the bank of the respondent-company, were got dishonoured and stopped for payment by the respondent-company. Total amount of Rs. 55,18,896 as on March 15, 2010, prima facie remained due as against the respondent-company, being payable to the petitioner-company (Tata) as per the statutory notice sent on June 29, 2010 (annexure 10). 10. Total amount of Rs. 55,18,896 as on March 15, 2010, prima facie remained due as against the respondent-company, being payable to the petitioner-company (Tata) as per the statutory notice sent on June 29, 2010 (annexure 10). 10. Be that as it may, there is no prima facie evidence which could justify that there was bona fide dispute regarding payment being made in cash or claim being disputed, and the defence taken in the reply appears to be an afterthought ; rather this gives an indication that there was no dispute regarding amount of outstanding dues as is evident from the memorandum of settlement (annexure 8) and payment schedule (annexure A) attached thereto. 11. There cannot be a dispute on the legal aspect that winding up petition is maintainable if the company fails to pay its debt and the relief as prayed for in the winding up petition can be refused if the debt is bona fide disputed and the defence of the company is in good faith and its defence is likely to succeed in point of law while the company adduces prima facie proof of facts on which its defence depends. 12. It is settled law that for invoking section 433(e) read with section 434(1)(a) of the Companies Act in relation to winding up of a company on the ground of its inability to pay its debt, what is necessary is that despite service of notice by the creditor, the company which was indebted in a sum exceeding one lakh rupees than due, failed and/or neglected to pay the same within three weeks thereafter or to secure or compound for it to the reasonable satisfaction of the creditor ; and failure of the company to pay the agreed interest or the statutory interest would come within the purview of the word "debt" ; and that section 433(e) of the Companies Act does not state that the debt must be precisely a definite sum and it is not a requirement of law that the entire sum must be definite and certain. 13. 13. In reply to the winding up petition, further objection has been raised by the respondent-company that there are other remedial measures for settlement of disputed amount, but at the same time, it has been averred that the respondent-company is always ready to make payment of outstanding dues but only after adjustment and reconciliation ; but what settlement is required to be carried out, has not been placed on record for consideration. 14. From the material on record, the respondent-company has miserably failed to prima facie establish his bona fides pleaded in defence in the reply to the winding up petition. As observed (supra), the defence now being raised for the first time in the reply to the winding up petition at hand is prima facie an afterthought being raked up to defeat the claim of the petitioner-company, and the respondent-company, despite persistent demands through repeated letters, besides legal notice sent through registered post, has neglected to pay the outstanding dues, which prima facie establishes its inability to pay its debt. 15. For the reasons stated (supra), this court prima facie finds that the respondent-company is unable to pay its debts. 16. Heard. Admit. Let the notices of winding up petition be published in the daily newspapers (1) Rajasthan Patrika (All Rajasthan) and (2) Times of India (Delhi edition) in the format prescribed under the Companies Act and Companies (Court) Rules. 17. Let the petition be listed for further orders after the notices are published. *******