The acknowledgment of debt made by the respondent company before the limitation period had expired started a fresh limitation period, making the company petition maintainable.

M. Jaichandren, J.

1. This Original Side Appeal has been filed against the order and decreetal order, dated 29.6.2012, made in C.P.No.2 of 2009, on the file of this Court.

2. The company petition, in C.P.No.2 of 2009, had been filed by the petitioner therein, the appellant in the present original side appeal, under Section 433(e) and (f) of the Companies Act, 1956, praying for an order directing the winding up of the respondent company and for an order appointing the liquidator attached to this court, as the liquidator of the respondent company, with all the necessary powers under the provisions of the Companies Act, 1956, including the power to take possession of all affairs, assets, management, books, papers and vouchers and to award costs.

3. It had been stated that the respondent company is an information technology company involved in the field of archiving and data conversion from analog to digital mode. The respondent company has its registered office at Chennai and it also has a corporate office in Bangalore. The respondent company has international presence in the United States of America, Singapore and Australia.

4. It had been further stated that, in the year, 2003-2004, the respondent company was desirous of promoting its sales and for making its presence in the United States of America. The petitioner possessed the necessary marketing expertise and the knowhow and he had a high reputation and credibility in the information technology industry in the United States of America. Therefore, the respondent company had sought the services of the petitioner, as a consultant for the respondent company. Accordingly, the respondent company had engaged the petitioner, as a consultant, by executing a Consulting Agreement, dated 21.5.2004. Under the said agreement, the respondent company had appointed the petitioner, as a consultant on a non-exclusive basis and had required him to market the respondent company's services, as listed therein, in the regions of North and South America. As a consultant, the petitioner was required to source and negotiate a new business for the respondent company and to provide all the necessary and related assistance. The consulting fee agreed to be paid by the respondent company to the petitioner, for the services to be rendered by him, was a sum of US$ 10,460 per month. In addition to the said amount, the respondent company was also liable to pay the petitioner other incidental expenses such as work related travel expenses, expenses relating to the use of his phones, office supplies and health insurance.

5. It had been further stated that the Consulting Agreement had been entered into for a period of six months, upto the month of November, 2004. The agreement had been renewed for a further period of six months, by another Consulting Agreement, dated 19.11.2004. The second agreement was in force upto the month of May, 2005. The terms of the second agreement were similar to those of the first agreement.

6. It had been further stated that the respondent company was irregular in making the payments to the petitioner. By the month of March, 2005, a sum of US $ 1,64,500 was due to be paid by the respondent company to the petitioner. Inspite of the persistent attempts by the petitioner to persuade the respondent company, to release the payments due to him, the respondent company had failed to do the same. In such circumstances, the appellant had tendered his resignation, on 28.3.2005. Thereafter, the respondent company started negotiating with the petitioner. The respondent company has stated that it was unable to pay the entire amount that was due to the petitioner, as it did not possess sufficient funds for the same. However, as a gesture of good faith the petitioner had agreed to settle the amounts due to him and had agreed to receive a sum of US $ 1,40,000/-. As the respondent company was not in a position to pay the said amount it had executed a promissory note in favour of the appellant, o