JUDGMENT
Swatanter Kumar, J.
1. This petition under Sections 433(2), 434 and 439 of the Companies Act, 1946 (hereinafter referred to as the Act) was filed originally by 12 petitioners with a prayer that M/s Haryana Cotton Mills Private Limited, Simbawala Road, Tohana, Distt. Hisar (hereinafter referred to as the respondent company) be ordered to be wound up, as it is unable to pay its debts.
2. Learned counsel appearing for the respondent company sought time to file reply on 5.9.1997 and the case was adjourned to 10.10.1997. Reply was not filed and costs were imposed by the court for this default. On 27.2.1998, the court passed the following order:-
“Cost of Rs. 1,000/- has been paid in court today. Learned counsel appearing for the respondent has also filed an affidavit stating that the matter has been compromised with the petitioner. The fact is not admitted by the learned counsel for the petitioner who submits that, infact, no compromise has been entered into. Counsel for the petitioner to confirm the contents of the affidavit which has been filed in court today and send a reply by means of a letter to the counsel for the respondent within one week from today. If the counsel for the petitioner informs that no compromise has been entered into, the counsel for the respondent shall file reply to the main petition within two weeks of the receipt of such reply.
List of April 3, 1998.”
On 8.5.1998, the court passed the following order:-
“It is an admitted position on record that no settlement has been arrived at with the petitioner No. 4. Learned counsel appearing for the respondent submits that either the matter would be settled with petitioner No. 4 before the next date of hearing or he would argue the matter on the next date of hearing.
List on 10.7.1998.”
3. Vide order dated 7.8.1998, the court had directed the deletion of names of all the petitioners except petitioner No. 4. The arguments were heard on 24.12.1998. On behalf of the respondent company only a short affidavit was filed wherein it was stated that all the petitioners except petitioner No. 4 have compromised with the respondent company and had executed an agreement. Photocopy of the alleged agreement was placed on record. It was prayed that the petition be dismissed.
4. No detailed reply to the petition was filed on behalf of the respondent company inspite of opportunities meeting the claim of the petitioner No. 4, on whose behalf of petition was being pursued.
5. The case of the petitioner No. 4 was that on various dates during the year 1994, 1995 and 1996, the respondent company had purchased Narma from the said petitioner and had made part payments. The details of the material supplied and the part payments received by the petitioner No. 4 have been filed on record as Annexure P-7. The respondent company is stated to have issued ST 15 Forms for the purchases made and last payment of Rs. 2.50,56 – is stated to have been made to the petitioner No. 4 by the responder company on 11.1.1997. Thus, leaving a balance of Rs. 1,77,980.70 ps. All other petitioners had also raised similar claims. Claims of all other petitioners were settled by the respondent company in terms of the compromise entered into between the parties. The photocopy of the agreement entered into between the parties shows that the respondent company had agreed to transfer 3.5 acre of land and machinery etc. of the respondent company to them as per the terms and condition of the agreement. Resultant thereto, the other petitioners had recorded satisfaction of their claims and those petitioners had agreed not to pursue winding up petition. Petitioner No. 4 has pressed his claim and he is admittedly not a party to the alleged agreement. Seeing from any angle, the respondent company has no defence to the claim of the petitioner No. 4. In other words, the respondent company has admitted its liability to pay the said amount and infact has already entered into agreement with all other petitioners alongwith petitioner No. 4. Resultantly, the claim of petitioner No. 4 still subsists. Issuance of ST 15 Forms indicates admission on behalf of the respondent company that it had purchased the material from the said petitioner. No reply has been filed disputing the averments made. The averments made in the petition, thus, remain un-controverted and this court has no option to believe that the version put forwarded by the petitioner No. 4 is correct and bonafide. On the other hand, there appears to be no bonafide defence on the part of the respondent company to dispute the amount of debt claimed. It is clear that the respondent company is avoiding to make the payment of the amount lawfully due from it to the petitioner No. 4. The statutory notice was duly served upon the respondent company. Resultantly I have no hesitation in directing admission of this petition.
6. Consequently, this petition is admitted. Notice of admission be published in ‘The Tribune’, ‘Jan Satta’ and official Gazette of State of Haryana giving 14 days’ clear notice prior to the next date of hearing.
7. Matter be listed for further directions on 9.4.1999.
8. During the course of arguments, it was contended on behalf of respondent company that other petitioners except petitioner No. 4 have themselves taken over the properties and management of the company, as such the claim of the petitioner No. 4 does not survive. I do not see any merit in this contention, as far as claim of petitioner No. 4 is concerned. However, in the interest of justice, it is directed that if the respondent company or its alleged new management makes the payment of Rs. 1,77,980.70 ps. to the petitioner No. 4 by 12.3.1999, the publication shall not be effected.