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2015 (9) TMI 1572 - HC - Companies LawCompany Court in India territorial jurisdiction - petition for winding up of the Company having its registered office in India - Company Petition by the appellant Trustee - winding up petition - Held that:- It cannot be denied that filing of a winding up petition on account of the Company being unable to pay its debts is a proper course, which can be taken by the creditor. A creditor, in its wisdom, may chose to file a suit for payment of its debts, but merely because of having such a right available, would not bar the creditor from filing a winding up petition, where the debts are admitted by the Company and it is unable to pay. By saying this, we are not recording a finding to the effect that the Company is unable to pay its admitted debts, but where the Company Petition has been filed on the ground that there are admitted debts to be paid by the Company to the appellant, which it is unable to pay, it would be for the Company Court to take a final decision in the matter and then decide whether, in the facts of the case, the Company is to wound up or not. However, saying that because of clause 13.3 of the Trust Deed, the option of filing of Company Petition by the appellant Trustee is taken away, would not be correct. As we have already observed above, questions of law can always be looked into by the Courts in India by applying, either Indian law or English law, as the case may be. For deciding this question, all that would be required is interpreting the provisions of the Trust Deed by applying Indian law or English law. In our view, the same can always be done by the Company Court, if such question is raised before it during the course of the proceedings. The position of law is absolutely clear, that it is for the company petitioner to prove that the debt liable to be paid is either admitted or duly proved, and also that the company is unable to pay such debt. It is only in such circumstance, the petition for winding up would be allowed. In the present case, since such question has not been gone into by the Company Judge, who has dismissed the petition only on the ground of lack of jurisdiction, we would not be inclined to make any observation in this regard, and would leave it to the Company Court to record its finding on this issue. Thus we are of the opinion that the dismissal of the Company Petition on the ground of jurisdiction, cannot be sustained in the eye of law. Accordingly, the judgment of the Company Court dismissing the Company Petition, is set aside and the matter is remanded back to the Company Court for fresh decision
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