K. S. SHRIVASTAV, J.

( 1 ) THIS is an application under Section 433 (A) of the Companies Act for winding up of the respondent-company.

( 2 ) IT is an admitted fact that the petitioners were appointed as trainees/captains on stipend of Rs. 25,000. 00 each. They had executed separate agreements. It was stated that on being appointed as regular captains they would be paid total emoluments per month of Rs. 40,000. 00. Later it was enhanced to Rs. 60,000. 00 per month vide letter dated 26-12-1995.

( 3 ) ACCORDING to the petitioners their salary was paid irregularly and in part. The respondent had paid Rs. 50,000. 00 towards part payment of salary for the month of March 1996. Because it was enhanced to Rs. 75,000. 00per month from the month of March till the date of filing the petition, the respondent company did not pay the salary at the rate of Rs. 75,000. 00 per month. They have resigned from the post of Trainees/captains through resignation letter dated 23-6-1996. But the resignation letter is yet to be accepted. The respondent company did not pay the due salary inspite of statutory notice sent separately by both the petitioners on 26-6-1996. The respondent company has neglected to pay the salary due and therefore, the company should be wound up.

( 4 ) THE respondent company through its counter has denied the claim of the petitioners and has alleged that both the petitioners were appointed to the cadre of Captain and they were not entitled to revision of salary from Rs. 60,000. 00 to Rs. 70,000. 00. They have denied the genuineness of the letter dated 26-12-1995. In para 7 of the petition the respondent company alleged that it has spent huge amounts for the petitioners for their training and they are bound by the agreement executed by them. They have denied the legal notice dated 26-6-1996.

( 5 ) MY learned predecessor has framed the following issues: (1) Whether the respondent company is liable to be wound up for the reasons alleged in the petition ? (2) To what relief?

( 6 ) THE petitioners have filed their affidavit in an attempt to prove their allegations made in the counter. It is urged on behalf of the petitioners that the amount of salary is admittedly due and, therefore, it is a debt though the petitioners have resigned. But the resignation would take effect only from the date of acceptance by the respondent company which has not accepted the resignations as yet. Therefore, the respondent company cannot take advantage of either clause 4 or clause 6 (e) of the agreement executed by the petitioners on 22-8-1994.

( 7 ) ON the other hand, the learned Counsel for the respondent relying on The case of Pawan Kumar Khullar v. Kaushal leather Board Ltd. , AIR 1996 MP 85, has urged that the salary is a remuneration and not a debt and, therefore, the petition is liable to be dismissed on this ground only. It has been further contended that the provisions of Section 433 of the Companies Act could not be pressed into service for recovery of debt particularly when there is a bona fide dispute as raised by the company.

( 8 ) IN the case of Kesoram Industries and Cotton Mills Ltd v. CWT, (1996)59 ITR767, the Apex Court after discussing various decisions has observed that- "a debt means a sum of money which is now payable or will become payable in nature by reason of present obligation, debitum in presenti, solvendum in futuro. " A debt involves an obligation incurred by the debtor and the liability to pay a sum of money in present or future. The liability must, however, be to pay a sum of money i. e. , to pay an amount which is determined or determinable in the light of factors existing on the date when the nature of the liability is to be ascertained. "

( 9 ) THE claim of short delivery of materials has been held to be debt in the case of Kudermukh Iron Ore Co. v. Kooky Roadways P. Ltd, 1990 Vol. 69 Com. Cases 178. The unpaid salary of an employee is liable to be recovered from the employer, because the employer is obliged to pay it to th

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