MUKUNDAKAM SHARMA, C. J.

( 1 ) THIS appeal is directed against the order dated 17th December, 2004 passed by the learned Company Judge dismissing the Company Petition filed by the appellant herein under Sections 433, 434 and 439 of the companies Act on the allegation that an amount of Rs. 18,75,000/- is due and payable from the respondent company, which has not been paid despite service of notice.

( 2 ) THE aforesaid petition was filed before the learned Company Judge praying for winding up of the respondent company on the ground that it is indebted to the appellant and is unable to pay the debt.

( 3 ) THE respondent entered appearance and contested the aforesaid petition on merits and that the claim of the appellant was barred by limitation.

( 4 ) IN view of the aforesaid pleas raised, the learned Company Judge made reference to the correspondence exchanged between the parties and several decisions to hold that the claim made in the winding up petition was barred by limitation. It was observed by the learned Company Judge that there was also dispute about the payment of the alleged claim as the respondent had stated that the appellant had not performed its part of the agreement and disputed question of fact had been raised, which cannot be determined by way of summary proceeding in terms of the provisions of sections 433, 434 and 439 of the Companies Act.

( 5 ) THE aforesaid findings are challenged by the counsel for the appellant before us.

( 6 ) WE have heard the counsel appearing for both parties at length and have also referred to the various documents on record to appreciate the contentions raised before us. Commercial relationship between the appellant and the respondent is governed by an agreement, which was entered into between the parties on 16th June, 1997. The liability to pay commission under the aforesaid agreement is governed by the clause under the heading "your commission", which reads as follows:

"your Commission: we are agreeable to compensate by you paying a lump sum commission of Rs. 7,500,000/- (Rupees Seven million five hundred thousand

only) as follows: (a) 50% on receipt of advance payment from the customer. (b) 50% pro rata during execution of the contract. "

( 7 ) THE aforesaid clause is immediately followed by a clause of "validity", which is extracted below:

"validity: this appointment will remain valid for a period of 24 months or uptil conclusion of the contracts whichever is later. "

( 8 ) RELYING on the said validity clause, it is submitted by the counsel for the appellant that the lump sum commission of Rs. 75 lacs was to be paid in two parts. The first part was to be paid on advance payment from the customer, whereas the second 50% i. e. the remaining commission was to be paid pro rata during execution of the contract. It is submitted that since the agreement was valid for a period of 24 months or uptill conclusion of the contract,, whichever is later, therefore, it was wrong on the part of the learned Company Judge to hold that the aforesaid claim is barred by limitation as the claim for payment could be made till expiry of the contract or 24 months, whichever is later.

( 9 ) THE contentions raised are refuted by the counsel for the respondent, who has drawn our attention to the notice issued by the appellant under section 434 of the Companies Act, which is a mandatory notice. The only claim that was made was with regard to non-payment of the earlier part (part-a) of total 50%, which was payable on receipt of advance payment from the customer.

( 10 ) THE records before us indicate that a total amount of Rs. 75 lacs was payable on account of commission out of which 50% of the amount, namely, rs. 37,50,000/- was payable on receipt of advance payment from the customer. The balance amount of Rs. 37,50,000/- was payable pro rata during execution of the contract. The appellant herein raised an invoice for a sum of Rs. 37,50,000/- on 3rd July, 1997. Admittedly, the said invoice is in respect o