2006 (8) TMI 328

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....f the appellant, the present appeal has been filed. We have heard Mrs. M. Hazarika, learned senior counsel for the appellant and Dr. A.K. Saraf, learned senior counsel for the respondent. The aforesaid company petition was filed by the respondent company praying for passing necessary orders to wind up the appellant-company as, according to them, the appellant company was unable to pay its debt due to the respondent-company. The basis of claim of the respondent-company is a foreign judgment passed by the District Court for the Middle District of North Carolina Greensboro Division in Civil Action No. 1. 98CV01041 By the said judgment the appellant company has been made liable to pay a sum of $ 2,257,147.58 together with interest thereon....

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.... winding up petition alleging inability to pay the amount mentioned in the said foreign judgment. According to learned counsel, the debt alleged to be due from the appellant-company is in fact no debt in the eye of law and in the absence of a legally valid adjudication of the dispute involved between the parries by applying the relevant Indian laws, the same cannot be said to be a executable one giving rise to a cause of action for tiling the winding up petition. In support of her contention, Mrs. Hazarika has referred to the provisions of section 13 of the Code of Civil Procedure, 1908, and the provisions of section 73 of the Indian Contract Act, 1872. It is further submitted that against such a judgment and/or decree passed by a foreign c....

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...., i.e., at the notice stage. The appellant in defending the winding up of the company will be entitled to raise its defence in accordance with the provisions contained in section 439A(i) and (ii) of the Companies Act. It is, thus, clear that whatever defence the appellant may want to raise, the same would be able to be fully canvassed before the learned company court, justifying its refusal to pay the alleged debt. It is a true that foreign decree/order can be executed by ordinary mode of execution as provided under Order 21 of the Code of civil Procedure, 1908. The right to approach the company court for winding up of a company by filing appropriate application as provided under section 433(f) of the Companies Act, 1956, is an independe....