TMI Blog2019 (8) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... mmary judgment for non-appearance before a foreign court cannot be relied upon for seeking winding up of a company. Such decree cannot be held conclusive as it has not been given on merits of the case. Admittedly, Appellant is pursuing the litigation before the Bombay High Court in regard to the foreign decree and claim payable thereunder. He cannot be permitted to circumvent the appropriate legal remedy, already pursued, by invoking provisions of Section 9 of I B Code, thereby defeating the fundamental provisions of law governing execution of a foreign decree obtained in ex-parte from a court located in a non-reciprocating territory. Such course is neither legally permissible nor warranted as admittedly the matter is not covered under Section 44A of CPC. The argument advanced warrants outright rejection and is accordingly rejected. The adjudication initiated by the Appellant before Bombay High Court wherein adjudication is sought in regard to foreign decree obtained ex-parte falls within the purview of a pre-existing dispute placing an embargo on the powers of Adjudicating Authority to initiate Corporate Insolvency Resolution Process at the instance of a Corporate Debtor - a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esides repatriation costs of USD 1690/- in addition to arrears of salary computed at USD 80,000/- admissible from September, 2012 till date of order viz. 7th April, 2015 + interest was also awarded in favour of the Appellant. The Corporate Debtor did not comply with the judgment. Instead it wound up its operations and project in Congo. This forced the Appellant to seek shelter with the Indian Embassy in Congo and return to India. The Appellant filed suit no. 526 of 2017 under Section 13 of the Code of Civil Procedure 1908 before the Bombay High Court. The Appellant claimed unpaid Operational Debt calculated at INR 1,59,09,181/- from Corporate Debtor as according to the Appellant he continued to be on the roll of Corporate Debtor. Appellant issued demand notice under Section 8(1) of I B Code which was served upon the Corporate Debtor on 12th June, 2018. Since the demand notice did not invoke any response from the Corporate Debtor within the prescribed period, but a delayed reply was received by the Appellant wherein the Corporate Debtor raised the plea of dispute in regard to the Operational Debt in the form of suit commenced by the Appellant in Bombay High Court after issuance of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the salary not being paid being an Operational Debt, the Appellant was justified in invoking jurisdiction of Adjudicating Authority under Section 9 of the I B Code. It is lastly submitted that Corporate Insolvency Resolution Process could be invoked by the Appellant irrespective of the foreign judgment. According to learned counsel for Appellant, the foreign decree is only a record supporting Appellant s claim for debt in respect whereof default has been committed by the Corporate Debtor and there being no pre-existing dispute between the parties, the impugned order cannot be sustained. 5. Per contra learned counsel for Respondent submits that the alleged debt as claimed by the Appellant is not due and payable by the Respondent as the alleged debt is not crystallized by a court of competent jurisdiction. It is submitted that the foreign decree relied upon by the Appellant being an ex-parte decree passed by a court in a non-reciprocating territory is not an enforceable decree in India unless held to be conclusive and executable in India under Section 13 of CPC. The alleged debt till then would not be a debt payable in law as on the date of filing of insolvency applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon for seeking winding up of a company. Such decree cannot be held conclusive as it has not been given on merits of the case. Reference may profitably be made to law laid down by Hon ble High Court of Delhi in Rajkumar Gupta Vs. Barnes Investments Ltd. Ors. , reported in 2007 (99) DRJ 629 and Hon ble High Court of Bombay in Marine Geotechnics LLC Vs. Costal Marine Construction and Engineering Ltd. , reported in (2014) 183 CompCas 438 (BOM) . It cannot be disputed that the concept of winding up under the Companies Act, 2013 tantamount to liquidation under the I B Code and viewed in perspective of legislative change it has to be accepted that the liquidation being culmination of the process under I B Code as a sequel to failure of Insolvency Resolution, a foreign decree passed in ex-parte for default in appearance of the Corporate Debtor and not on merit could not be the basis for initiation of Corporate Insolvency Resolution Process. 8. Learned counsel for Appellant tried in vain to persuade us that the requirement of filing of a suit on the foreign decree in keeping with the mandate of Section 13 of CPC would not preclude the Appellant Operational Creditor fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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