2009 (12) TMI 526

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....upplied by the appellant were defective the respondent herein instituted a suit in the United States District Court, Middle District of North Carolina. The further details of the suit are not necessary for the present except to state that eventually the said suit came to be decreed on April 12, 2001, for a sum of US $ 22,57,147.58. 5. On June 29, 2002, the appellant received a notice dated June 24, 2002, from the respondent demanding payment of the abovementioned decretal amount equivalent to Rs. 11,06,00,227 along with interest at the rate of 8 per cent, per annum. The appellant disputed its liability. Consequently, the Company Petition No. 10 of 2002 (California Pacific Trading Corpn. v. Kitply Industries Ltd. [2009] 148 Comp. Cas. 345 (Gauhati)) came to be filed. 6. By the judgment dated November 19, 2008 {California Pacific Trading Corpn. v. Kitply Industries Ltd. [2009] 148 Comp. Cas. 345 (Gauhati)), the learned company judge allowed the company petition directing the appellant-company to be wound up. The present appeal was admitted on January 7, 2009, an interim stay of the operation of the judgment under appeal was ordered and the matter was directed to be heard finall....

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....al might affect the appellant at later stage of the proceeding, we make it clear that those findings/observations have been made only for the purpose of deciding the limited prayer relating to the maintainability raised by the appellant and the learned company judge will independently assess the matter at the final stage of hearing on the basis of defence that may be delivered by the appellant in support of its case." 6. Coming to the judgment under appeal, the learned judge did not adjudicate upon the objections raised by the appellant on the ground that an enquiry into the issues such as the one raised by the appellant would tantamount to going beyond the decree passed by the company court. At paragraphs 9 and 10 of the judgment the learned judge held as follows (351 of 148 Comp Cas) : "10. Where the debt claimed to be due arises under a decree objections to the legality of the decree cannot be considered by the company court by going behind the decree as such a course of action may have the effect of converting the company court as an appellate forum against the decree. Such objections, therefore, must appear on the face of the decree and the same must go to the root of th....

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....even on this count the conclusion of the learned judge that there was a debt due to the respondent herein from the appellant-company is not legally tenable. 8. In so far as the first submission of learned counsel for the appellant, that the objections of the appellant based on section 13 of the CPC, are concerned the learned judge did not examine the same on the ground that such an examination tantamount to going beyond the decree and is not permissible for the company court. We are of the view that the learned judge erred in reaching such a conclusion. We have already held in the order dated July 29, 2009, that the question of either recognition or enforcement of a foreign decree is subject to the principles of conflict of law of this country. Sections 13, 14 and 44A of the CPC are some of the provisions dealing with the rules of the conflict of laws in this country. While sections 13 and 14 embody a rule of evidence whenever a foreign decree is sought to be relied upon for the recognition of any right based on such a foreign decree section 44A deals with enforcement of specified class of foreign decrees by way of execution of the decrees. 9. Section 14 of the CPC mandates t....

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....009 (Kitply Industries Ltd. v. California Pacific Trading Corpn. [2009] 151 Comp. Cas. 19 (Gauhati)), that even in those cases where foreign decrees are executable by virtue of the operation of section 44A of the CPC it is open to the judgment debtor to resist the enforcement of such a decree on the ground that the decree is unenforceable for one or some of the reasons mentioned under section 13 clauses (a) to (f). Section 44A(3) ^1, clearly recognises such a right. 12. In fact learned senior counsel for the respondent Mr. A. K. Bhattacharyya very fairly conceded that the various objections raised under section 13 by the appellant herein are required to be considered. 13. Coming to the second submission made by learned counsel for the appellant that in the absence of a certified copy of the foreign judgment the company petition could not have been adjudicated upon as there was no legal material before the court to establish the fact that the appellant herein owed any debt to the respondent. Learned counsel for the respondent argued that such an objection having not had been made before the learned judge the appellant is debarred from raising the objection at this stage. 14....