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Issues Involved:
1. Commercial Insolvency of the Company 2. Bona Fide Dispute as to Debt 3. Validity of Consent Decree 4. Jurisdiction of the High Court to Try the Suit Detailed Analysis: 1. Commercial Insolvency of the Company: Mr. Sen argued that the company is commercially insolvent, even excluding the disputed debt, and should therefore be wound up. He cited the omission to file balance sheets and provide particulars of assets and liabilities as raising a strong presumption of insolvency under section 114 of the Evidence Act. However, the burden of proof for proving insolvency lies on the applicant. The respondent-company denied the allegations of insolvency, and the applicant did not rely on specific facts or the last balance sheet published. The court found the omission by the respondent insufficient to discharge the burden of proof, thus rejecting this contention. 2. Bona Fide Dispute as to Debt: Mr. Sen further submitted that a winding-up order should be made as the claim is founded on a decretal debt, leaving no room for bona fide disputes. The respondent's counsel argued that the company was not competent to guarantee the liabilities of its sister concern, making the consent decree void and a nullity. The court considered the position when a debt is disputed before the winding-up court, referencing English and Indian case law. It was established that non-payment of a bona fide disputed claim is no proof of insolvency. The court must determine if the grounds for disputing the debt are substantial and bona fide. 3. Validity of Consent Decree: The respondent argued that the consent decree was void due to the company's incompetency to guarantee the debt and the decree's effect on immovable properties outside the jurisdiction. The court noted that a decree without jurisdiction is a nullity and can be challenged collaterally. It also highlighted that a consent decree stands on the same footing as a contract and can be set aside on similar grounds, such as fraud or collusion. The court emphasized that the winding-up court has broader jurisdiction to go behind a decree than ordinary civil courts, particularly in bankruptcy matters. The court found that the decree raises a strong presumption of the existence of the debt, but this presumption can be rebutted by showing a bona fide dispute. 4. Jurisdiction of the High Court to Try the Suit: The respondent raised the issue of the High Court's jurisdiction to receive, try, and determine the earlier suit resulting in the consent decree. The court considered whether the suit, which included a claim for a charge on immovable properties outside the jurisdiction, was within the High Court's jurisdiction under Clause 12 of the Letters Patent. The court noted that a suit is treated as one unit and cannot be split into separate suits for jurisdictional purposes. The court found a substantial ground of dispute regarding the jurisdiction and deemed it bona fide. Conclusion: The application for winding up was adjourned until the disposal of the pending suit filed by the respondent company. If the suit is not proceeded with or is decided in favor of the petitioning creditor, the creditor may bring the winding-up petition back to the list. The interim order restraining the respondent company from applying for an injunction against the petitioning creditor was modified accordingly. The costs of the application were reserved, and no costs were awarded to the supporting creditors.
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