This petition is by a creditor of the company for its compulsory winding up. The ground on which the petitioner seeks the order is that the company, in spite of his notice of demand dated October 31, 1960, to pay a sum of Rs. 26, 400 for services rendered as its managing director from July 1, 1958, to August 6, 1959, has failed to comply with the demand down to- date. The other ground of the petitioner is that the company is also unable to pay its debts

This is a private limited company, of which the petitioner was the managing director until August 6, 1959. He resigned from that office with effect from the next day. But he continued to be a director of the company for some time thereafter. His case is that under article 107 of the articles of association , he was entitled to draw Rs. 2, 000 per mensem as remuneration for his services as managing director of the company, that though prior to April 1958, he did not draw his salary, he, however, did so from April to June, 1958. The company's year of account is stated to be 30the June. He claims that since the beginning of july, 1958, to the date of his resignation, the company was liable to pay his remuneration. According to him, in the balance-sheet for the year 1958-59 a sum of Rs 24, 000 was debited to the profit and loss account as payable to the petitioner as remuneration for that period. He has also claimed, though wrongly as evident from exhibit R-1(a), that at the general body meeting of the company on March 31, 1960, the accounts as shown in the balance-sheet were passed. The petitioner assets, therefore, that there could be no doubt that the sum of Rs. 24, 000 was owing to him from the company by way of remuneration

Alternatively, the petitioner refers to the affidavit of the Registrar of Companies, in which it his stated that the company had, as on June 30, 1962, realisable assets of the value of Rs. 5, 51, 253 against liabilities of Rs. 14, 59, 260, and contends that in view of this company is unable to pay its debtsMy impression formed in the course of the arguments before me is that the petitioner has resorted to this application for winding up as a means of recovering his debt, instead of instituting a suit for the purpose and establishing his debt. But I am not inclined to dispose of the application on that ground. On behalf of the company, the plea is that the petitioner has waived his right to remuneration for the period form July, 1958, to the end of June, 1959. I am not satisfied that this plea has been made out. As a matter of fact, as late as December 17, 1959, the directors resolved requesting the petitioner to waive his claim. There is no evidence that the petitioner complied with that request at any time. On the other hand, by his letter dated October 31, 1960, the petitioner clearly denied having agreed to forgo his remuneration for the period. The contention of the company is that the circumstantial indications would show that there had been such a waiver. The circumstances referred to are that the petitioner, for the period prior to April 1958, had waived his remuneration for each year, and that in an earlier petition of liquidation, which went up in O. S. Appeal, he did not figure before the Division Bench dealing with that appeal as a creditor in response to an advertisement. As for the first circumstances, assuming that the petitioner had been waiving his remuneration every year prior to July, 1958, it does not necessarily follow from it that he waived for the subsequent year from July, 1958. The effect of the other circumstance is merely that the petitioner, by no acting as a creditor, was not interested either in supporting or opposing the winding up. It seems to me, therefore, that the plea of waiver is not true

The next contention of the respondent is that even assuming that the amount claimed by petitioner is due to him, the claim became barred by January 8, 1963, when the present petition was filed. I have already stated that at the