J. Chelameswar, J.

1. This company appeal arises out of an order dated November 19, 2008 in Company Petition No. 10 of 2002 (California Pacific Trading Corporation v. Kitply Industries Ltd. [2009] 148 Comp Cas 345 (Gau)).

2. For the purpose of the present the full factual details of the company petition may not be necessary and we shall state only those facts which are relevant.

3. The respondent herein, a company incorporated in America, filed the abovementioned company petition under Sections 439, 433(e) and 434(1)(b) of the Companies Act, 1956, praying that the appellant, a company registered in India under the Companies Act, 1956, be wound up on the ground that the appellant-company is unable to pay its debts.

4. Pursuant to an agreement between the parties, the appellant herein supplied one of its products known as marine teak plywood to the respondent. On the ground that the materials supplied by the appellant were defective the respondent herein instituted a suit in the United States District Court, Middle District of North Carolina. The further details of the suit are not necessary for the present except to state that eventually the said suit came to be decreed on April 12, 2001, for a sum of US $ 22,57,147.58.

5. On June 29, 2002, the appellant received a notice dated June 24, 2002, from the respondent demanding payment of the abovementioned decretal amount equivalent to Rs. 11,06,00,227 along with interest at the rate of 8 per cent per annum. The appellant disputed its liability. Consequently, the Company Petition No. 10 of 2002 (California Pacific Trading Corporation v. Kitply Industries Ltd. [2009] 148 Comp Cas 345 (Gau)) came to be filed.

6. By the judgment dated November 19, 2008 (California Pacific Trading Corporation v. Kitply Industries Ltd. [2009] 148 Comp Cas 345 (Gau)) the learned company judge allowed the company petition directing the appellant-company to be wound up. The present appeal was admitted on January 7, 2009, an interim stay of the operation of the judgment under appeal was ordered and the matter was directed to be heard finally at an early date. Consequently, the appeal was taken up for hearing on February 1, 2009.

7. On June 17, 2009, when the matter was taken up for hearing learned senior counsel for the appellant, Sri Jawaharlal Gupta, argued that since the petition under Section 439 of the Companies Act seeking winding up of the appellant-company on the ground that the appellant is unable to pay its debts is in the nature of an execution petition of a decree passed by the American court for realisation of the decretal amount and, therefore, the company court erred in allowing the company petition as the executing court can only execute those decrees passed by "superior courts" in "reciprocating territories" as defined under Section 44A of the Code of Civil Procedure, 1908; whereas the court from which the respondent obtained the decree is neither a "superior court" nor the United States of America or any part thereof is a "reciprocating territory" within the meaning of those expressions occurring under Section 44A of the Code of Civil Procedure, 1908. Learned Counsel has also submitted that such an objection was, in fact, raised before the learned company judge in the additional affidavit filed by the appellant before the company judge on February 5, 2008, but the learned company judge failed to examine the said question.

8. Though various other grounds are raised in the appeal regarding the correctness of the judgment under appeal learned Counsel appearing on behalf of either side in the appeal, agreed that if the abovementioned objection based on the noncompliance with Section 44A of the Code of Civil Procedure is accepted, it goes to the root of the matter and the company petition, itself, is liable to be rejected on that ground and the other questions raised in appeal need not be gone into.

9. Hence, we heard submissions of learned Counsel for both the sides on the abovementioned questio