JUDGMENT 1. - Instant company petition has been filed under sections 433(e) and 434 of the Companies Act, 1956, seeking winding up of M/s. AVR Texfabs P. Ltd. ("the respondent-company"). 2. M/s. Rameshwar Lal Govindram (the petitioner) is a proprietary firm duly engaged in the trade of iron goods and its proprietor (Kishanlal Agarwal) is residing at Madanganj-Kishangarh (Ajmer). The petitioner-firm supplied iron goods from time to time to the respondent-company, and as per the statement of accounts against goods supplied, a sum of Rs. 8,35,208 (rupees eight lakhs thirty five thousand two hundred and eight only) was outstanding and recoverable as on September 30, 2008, against M/s. AVR Texfabs P. Ltd. (the respondent-company) which is a private limited company, incorporated in August, 2005, having capital of rupees two crores twenty-five lakhs divided into 22,50,000 equity shares and the amount of paid-up equity capital is of rupees one crore, eighty nine thousand only. Its directors are both, husband and wife, and as alleged, time and again, requests were sent to the respondent-company and its directors to settle the accounts but both the directors have only informed that payment of such outstanding dues would be made. However, written request was sent by registered post on October 15, 2008, to the respondent-company, while endorsing its copy to respondents Nos. 2 and 3 (the directors) but these written letters were returned with an endorsement made by the postman that the addressee refused to accept ; and finally when no response came forward, the petitioner-firm sent legal notice dated November 14, 2008 (annexure 3) through registered post (annexure 4) to the respondent-company under sections 433 and 434 of the Companies Act, and its directors (respondents Nos. 2 and 3) asking them to make payment of the outstanding dues as on September 30, 2008, to the tune of rupees eight lakhs thirty five thousand two hundred and eight, along with interest payable with effect from October 1, 2008, till the actual payment. Despite legal notice being served, neither any reply thereto was sent by the respondent-company nor payment of outstanding dues as per legal notice was made. Hence the instant company petition. 3. Despite legal notice being served, neither any reply thereto was sent by the respondent-company nor payment of outstanding dues as per legal notice was made. Hence the instant company petition. 3. Notices were issued by the court vide order dated February 20, 2009, pursuant to which, reply has been filed by the respondent-company, wherein this fact has not been controverted that they have business dealings for trading of iron goods with the petitioner-firm and as per its ledger account as on April 1, 2008, the opening balance was of Rs. 7,18,963 as credit and against which, two entries have been shown as debit each of rupees one lakh as cash payment being made on April 28, 2008 and May 15, 2008 ; besides entry of rupees two lakhs as payment through cheque dated June 24, 2008, drawn on the Bank of Baroda ; and for balance, claim is shown to have been settled at Rs. 3,18,963. 4. It is curious enough that no documentary evidence as to how claim of Rs. 3,18,963 was settled and no receipt in regard to the alleged cash payment entry (supra) have been placed on record along with the reply ; despite the plea of defence taken by the respondent-company being controverted and disputed by the petitioner-firm that neither cash payment was made nor any settlement has ever been arrived at between the parties. The total amount of Rs. 5,18,963 as on June 24, 2008, has been prima facie remained due as against the respondent-company, being payable to the petitioner-firm. 5. However, affidavit has been placed on record to show bona fide that in the presence of Muzaffar Hussain (Civil Contractor), Om Prakash Agarwal (owner of M/s. Fulera Diamon Kishangarh) and Ram Niwas, accountant of the respondent-company, a settlement was made and the petitioner had agreed to deduct Rs. 3,18,963 as against sub-standard goods supplied. 6. 5. However, affidavit has been placed on record to show bona fide that in the presence of Muzaffar Hussain (Civil Contractor), Om Prakash Agarwal (owner of M/s. Fulera Diamon Kishangarh) and Ram Niwas, accountant of the respondent-company, a settlement was made and the petitioner had agreed to deduct Rs. 3,18,963 as against sub-standard goods supplied. 6. On the contrary, Muzaffar Hussain (Civil Contractor) has filed additional affidavit to show that no such affidavit was sworn by him and he had never signed any affidavit reference of which has been made by the respondent-company, in their reply and that apart, nothing has come on record by which it could prima facie reveal that there had ever been any correspondence having taken place for the goods being sub-standard supplied between the year 2005 to 2007, in regard to which also, the respondent-company, at any point had never disputed nor raised any grievance of the goods being sub-standard ; inasmuch as even as per their own ledger account entries maintained of the petitioner-firm from April 2, 2008, there has been credit of Rs. 7,18,963 showing as opening balance against which, payment of rupees two lakhs through cheque drawn on the Bank of Baroda was shown as debited on June 24, 2008. 7. Be that as it may, there is no prima facie evidence by which it could justify that there was bona fide dispute regarding payment being made in cash or claim being settled, in the absence of documentary evidence in the form of receipt of cash payment or in regard to the balance amount being settled in the presence of three persons and even from whose affidavits it does not disclose the date on which all the three named persons had ever met and what transpired between the parties to the alleged settlement and which appears to be an afterthought ; rather this gives an indication for arriving at the conclusion that there is no dispute regarding amount of outstanding dues as is evident from the ledger account. 8. 8. There cannot be a dispute that a 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. 9. 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 earlier, the defence now being raised for the first time only in the reply to the winding up petition at hand is prima facie an afterthought being raked up to defeat the claim of 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. However, it would be relevant to observe that after the reply being filed by the respondents at one stage, this court considered it proper that such dispute could be resolved through mediation, as well but could not be finally resolved and the matter was taken up. 10. For the reasons stated (supra), this court holds that a sum of Rs. 5,18,963 is due as against the respondent-company which they failed to pay in spite of demands. This court, therefore, directs the respondents to pay the amount, ibid, within one month, failing which instant company petition will be advertised in conformity with rules 24 of the Companies (Court) Rules, 1959, by publication in daily news papers (1) Rajasthan Patrika and (2) Times of India (Delhi edition) and so also in Rajasthan Government Gazette. 11. Let the petition be listed for further orders on March 31, 2011. *******