NARAYAN SHUKLA, J. - (1.) HEARD Mr. Faisal Ahmed Khan, learned counsel for the petitioner and Mr. Devendra Mohan Shukla, learned counsel for opposite party No. 1.
(2.) THE opposite party No. 1-Avadh Rubber Limited is a public limited com­pany incorporated under the Companies Act, 1956. The petitioner has filed the present company petition for winding of the company under Section 433(e) of the Companies Act as the company has failed to pay the salary to the petitioner for some periods and the same has become due. Learned counsel for the opposite party No. 1 has raised objection against the maintainability of the writ petition that for the payment of arrears of salary, the company may not be wound up under Section 433 (e) of the Companies Act as the arrears of salary is not debt.
(3.) TO determine the question as to whether the arrears of salary is debt or not and on default of payment of arrears, the company is liable to be wound up or not, the relevant provisions of the Act are to be considered, which are quoted herein-under: "Section 433. Circumstances in which company may be wound up by Tribunal.-A company may be wound up by the Tribunal- (a) ................ (b) ................ (c) ............... (d) ................ (e) if the company is unable to pay its debts; (f) ................. (g) ................ (h) ................ (i) ................. "Section 439. Provisions as to applications for winding up.-(1) An appli­cation to the [Tribunal] for the winding up of a company shall be by petition presented, subject to the provisions of this Section,- (a) by the company; or (b) by any creditor or creditors, including any contingent or prospective creditor or creditors; or (c) by any contributory or contributories; or (d) by all or any of the parties specified in clauses (a), (b) and (c), whether together or separately; or (e) by the Registrar; or (f) in a case falling under Section 243, by any person authorised by the Central Government in that behalf. (g) in a case falling under clause (h) of Section 433, by the Central Gov­ernment or a State Government. (2)...............:............... (3)............................... (4)............................... (5)............................... (6)............................... (7) .............................. (8) ......................... "529-A. Overriding preferential payment.-Notwithstanding anything con­tained in any other provision of this Act or any other law for the time being in force, in the winding up of a company- (a) workmen's dues; and (b) debts due to secured creditors to the extent such debts rank under clause (c) of the proviso to sub-section (1) of Section 529 pan passu with such dues, shall be paid in priority to all other debts. (2) The debts payable under clause (a) and clause (b) of sub-section (1) shall be paid in full, unless the assets are insufficient to meet them, in which case they shall abate in equal proportions." ;