TMI Blog2006 (8) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 at the statutory rate and the cost ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity 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 court, the petitioner has got the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant 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 independent right and not subjected to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stage before the learned company court, any finding of ours may pre-judge the issue which we do not intend to do for the interest of either of the parties, and learned counsel concur on this view. In that view of the matter, we do not find any merit in this appeal and, accordingly, the same is dismissed. Referring to the apprehension expressed by Mrs. Hazarika that the observation of the learned company judge in deciding the maintainability of the appeal 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 learned company judge will independently assess the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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