1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION REVIEW PETITION NO. 28 of 2007 IN APPEAL NO. 386 of 2007 IN COMPANY PETITION NO. 420 of 2006 Lanyard Foods Limited .. Petitioner/ Orig.Respondent versus China Shipping Development Co.Ltd. .. Respondent/ Orig.Petitioner And The Official Liquidator appointed as Provisional Liquidator on .. Official the Lanyard Foods Limited . Liquidator ... Mr.R.S.Tripathi for the petitioner. Mr.J.P. Sen i/b G.R. Mehta for respondent. CORAM : R.M.S.KHANDEPARKAR AND D.G.KARNIK,JJ JUDGEMENT DELIVERED ON: 13th June 2008. 2 JUDGEMENT (Per D.G.Karnik,J) JUDGEMENT (Per D.G.Karnik,J) JUDGEMENT (Per D.G.Karnik,J) 1. By this petition, the petitioner seeks review of the judgement and order dated 13th July 2007 passed by us in appeal no.386 of 2007. 2. The review has been sought on the ground that the issue viz. whether, in respect of an amount due under a foreign judgement, the creditor is entitled to file a winding up petition under clause (a) or is necessarily required to file a petition under clause (b) of the Companies Act 1956 has not been answered by us in the judgement under review. According to the petitioner it was necessary to answer the issue and since it has not been done, review is necessary. 3. The facts so far as they are necessary for the decision of the review petition are that the respondent has obtained a judgement against the petitioner in June 2003 in a legal proceedings instituted by it in the High Court of Judicature, Queens Bench Division, Commercial Court.U.K. That decision is herein after referred to as "the foreign judgement". The amount due under the foreign 3 judgement was not paid by the petitioner to the respondent. The petitioner did not file any execution petition in India for executing the foreign judgement, but issued a notice to the petitioner calling upon it to pay the amount due under the foreign judgement treating it as a debt due by the petitioner. On failure of the petitioner to pay the debt within three weeks of the receipt of the notice respondent filed a petition for winding up of the petitioner company interalia on the ground that the petitioner was commercially insolvent and was unable to pay its debts and also on the ground the petitioner had failed to pay its debt due to the respondent (which had culminated in a foreign judgement) within three weeks of the notice of demand served on it. A single Judge of this court, admitted the petition for winding up by an order dated 4th April 2007 and also appointed the Official Liquidator as the provisional liquidator for the petitioner company. The appeal filed by the petitioner against that order was dismissed by us by our judgement dated 13th July 2007. Review of that judgement is sought by this petition. 4. While arguing the appeal the Counsel had submitted that in case of an amount due under a judgement of a court whether Indian or foreign, the 4 judgement creditor has to file a petition for winding up only under clause (b) and not under clause (a) of section 431(1) of the Companies Act. Counsel for the petitioner submitted that since the issue was raised by him in appeal we ought to have decided the same and as the said issue has not been decided by us the judgement requires re-consideration. We are unable to agree for the reasons mentioned below :- 5. It is not the case that we had not referred to the points raised by the petitioner. We were of the view that the issue was not required to be decided in the facts and circumstances of the case since we had upheld the finding of the single judge that the petitioner was commercially insolvent and was unable to pay its debts and the winding up petition deserved to be admitted even under clause (c) of sub-section (1) of section 434 of the Companies Act. In our decision we have referred to the arguments of the petitioner in regard to maintainability of the winding up petition in paragraph nos.4 and 5. In paragraph no.7 of our decision, we have also referred to the arguments in reply of the respondent. We have also noted the conflict of the views taken by different High Courts. Majority of the High Courts appear to have taken a view that in respect of a non payment of an amount 5 due under a decree, a winding up petition can be filed under clause (b) as well under clause (a) of sub-section (1) of section 434 of the Companies Act after issuance of an appropriate notice. So far as this court is concerned, two Single Judges of this court have held that a winding up petition can be filed both under clause(b) as well as clause(a) of sub-section (1) of section 434 of the Companies Act for non payment of an amount due under a decree. We however considered it unnecessary to decide the issue finally firstly because the stage before the learned judge was only of an admission of the winding up petition and secondly because we were in complete agreement with the view of the single judge that the petitioner was commercially insolvent and was unable to pay its debts and winding up petition was required to be admitted under clause (c) of sub-section (1) of section 434 of the Companies Act. In paragraph no.22 of his judgement, the learned Single Judge has noted several circumstances for coming to the conclusion that the petitioner company was commercially insolvent and was unable to pay its debts. We have referred to those circumstances in paragraph no.8 of our judgement and have come to the conclusion that the petitioner company is commercially insolvent and is unable to pay its debt. In the circumstances, in our considered view it was not necessary to 6 adjudicate upon the issue whether for non payment of an amount due under a decree (Indian or foreign), a winding up petition can be filed only under clause (b) or can be entertained both under clause (b) as well as (a) of sub-section (1) of section 434 of the Companies Act, because in our view the winding up petition in any event required admission under clause (c) of section 434(1) of the Companies Act. 6. We see no merit in the review petition which is hereby dismissed. (R.M.S.KHANDEPARKAR,J) (D.G. KARNIK, J)