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2007 (4) TMI 366 - HC - Companies LawWinding up of company - Circumstances in which a company may be wound up - Provisions of the indemnity - Decree obtained from Foreign Court - HELD THAT:- The Letters of Indemnity provide in clause 5 that the liability of each and every person under the indemnity shall be joint and several and shall not be conditional upon the petitioner proceeding first against any person whether or not such person is a party to or liable under the indemnity. The decision of the English Court in the action brought against the bank was found on the finding that the Bank was not bound by a document on which the signature of its officer was forged. It must be noted that at Exh. D to the petition for winding up, the petitioner has annexed the formal or operative order of the Court of England. Even that order makes it ex facie clear that the judgment was delivered upon reading the state-ments of the witnesses and was a judgment granted on merits. That, as noted above, appears amply clear from the text of the reasoned judgment which has also been produced on record. A defendant to the proceedings before a foreign Court who chooses not to appear despite being served runs the risk of an ex parte judgment in favour of the plaintiff and it is a well-settled principle of law that even such a judgment would be a judgment given on merits if evidence is adduced on behalf of the plaintiff and judgment is based on a consideration of the evidence. Thus, the Company Petition shall stand admitted. The Company Petition shall be advertised in two local newspapers, namely, "Free Press Journal", "Navshakti" and in the Maharashtra Government Gazette. The Petitioner shall deposit an amount with the Prothonotary and Senior Master towards the publication charges, within three weeks with intimation to the Company Registrar failing which the Petition shall stand dismissed for non-prosecution. The facts adverted to hereinabove amply establish that this is a fit and proper case where the Official Liquidator should be appointed as a provisional liquidator in terms of prayer clause (a) of Company Application. From the averment of the Company Petition, it is clear that the financial substratum of the Company has been completely eroded. There shall accordingly be an order in terms of prayer clause (a) of Company Application. Until the provisional Liquidator takes charge, the order of injunction shall continue to operate. Company Application shall accordingly stand disposed of.
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