TaxTMI 
TaxTMI 
2007 (11) TMI 675
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....s 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....
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....l 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 iss....
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....of the notice and in fact no invoice was ever raised claiming the balance 50% amount mentioned in Clause (b). 11. We have carefully perused the said notice, which was issued on 27th July, 1998, a copy of which is placed on record. In order to come to an effective conclusion, we would like to extract a few paragraphs from the aforesaid notice: 2. That on or about 16.06.97, you entered into an Agreement for liaisoning and related services for the said projects under HINDALCO INDUSTRIES LTD. (RENUSAGAR POWER DIVISION) on an agreed remuneration/lump sum commission of Rs. 7,500,000/- (Rupees seventy five lacs only) to be paid in the following manner: i. 50% was to be paid on receipt of advance payment from the customer. i....
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....ent has instructed us to initiate necessary legal proceedings for the recovery thereof and also for the winding up of your company after the expiry of the statutory period of 21 days on account of your aforesaid inability to pay at your cost, risk and responsibility. 12. The aforesaid contents of the notice would indicate that the appellant restricted his claim in the aforesaid notice only to 25% of the amount, which allegedly remained due and payable by the respondent to the appellant after payment of Rs. 18,75,000/- was made on 10th July, 1997. The demand made in the said notice is for payment of an amount of Rs. 18,75,000/-, which is the balance amount payable pertaining to the claim of 50% on receipt of advance payment from the custo....