KRISHNA SARAN SHRIVASTAV, J.

( 1 ) THIS is an application under section 433 (e) of the Companies Act, 1956, for winding up of the respondent-company.

( 2 ) IT is an admitted fact that the petitioners were appointed as trainees/captains on a stipend of Rs. 25,000 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. Later, it was enhanced to Rs. 60,000 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 towards part payment of salary for the month of March, 1996. Because, it was enhanced to Rs. 75,000 per 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 per month. They have resigned from the post of trainees/captains through resignation letter dated 23/06/1996. But the resignation letter is yet to be accepted. The respondent-company did not pay the due salary in spite of statutory notice sent separately by both the petitioners on 26/06/1996. 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 to Rs. 70,000. 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 26/06/1996.

( 5 ) MY learned predecessor has framed the following issues : (1) Whether the respondent-company is liable to be wound up for the reason 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 22/08/1994.

( 7 ) ON the other hand, learned counsel for the respondent relying on the case of Pawan Kumar Khullar v. Kaushal Leather Board Limited [1996] 87 Comp Cas 130; 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 alone. 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 raised by the company.

( 8 ) IN the case of Kesoram Industries and Cotton Mills Ltd. v. CWT [1966] 59 ITR 767, the apex court, after discussing various decisions, has observed that (pages 780 and 787) :"a debt means a sum of money which is now payable or will become payable in future by reason of present obligation debitum in praesenti, 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 Kudremukh Iron Ore Co. Ltd. v. Kooky Roadways P. Ltd. [1990] 69 Comp Cas 178 (Kar ). The unpaid salary of an employee is liable to be recovered from the employer,

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