1. The Petitioner, a Company registered in Australia, has filed this Company Petition for winding up, after securing a foreign award against the Respondent for non-payment of the consideration for supply of scrap. The Petitioner had also filed an Original Petition in O.P.No.56/2014 under Part II of the Arbitration and Conciliation Act 1996 to record satisfaction that the foreign award, dated 28.02.2013 is enforceable in India. The said original petition was allowed by this Court by order dated 26.06.2014, rejecting the objections of the Respondent. Since, the award has not been satisfied by the respondent, the Petitioner has come up with the present Company Petition for winding up of the Respondent Company.

2. The learned counsel for the Petitioner contended that the award has become final and the respondent has failed to satisfy it, despite the statutory notice. The learned counsel also contended that the objections, raised by the respondent in their reply notice, are untenable and the claim, with regard to another contract, has to be proved by initiating new and separate arbitration proceedings, which has not been done by the respondent till date and in any case, the same cannot be a reason to defeat the claim based on a decree. The learned counsel also contended that the respondent Company is unable to clear its liabilities and the defence of counter claim is only an afterthought. The learned counsel also contended that once the award against the respondent has become final and held to be enforceable, it is open to the Petitioner to exercise all the remedies available under the law to secure the payment. The learned counsel also contended that the respondent cannot now assail the award after the same has attained finality. The learned counsel also placed reliance upon the following judgements and pleaded for winding up of the Respondent Company:-

1. AIR 1961 Cal 439 (Sarkar Estates (P) Limited Vs. Kusumika Iron Works (P) Limited and others)

2. AIR 1966 SC 1707 (Harinagar Sugar Mills Limited Vs. M.W.Pradhan)

3. AIR 1971 SC 2600 (Madhusudan Gordhandas & Co. Vs. Madhu Wollen Industries P Limited)

4. 1978 (48) CC 604-Cal (All India General Transport Corporation Limited Vs. Raj Kumar Mittal)

5. 1980 1 MLJ 443 (Seethai Mills Limited Vs. N.Perumalsamy and another)

6. 2011 (8) SCC 333 (Fuerst Day Lawson Limited Vs. Jindal Exports Limited)

7. 2014 183 CC 395 (Bom) (Intesa Sanpaolo SPA Vs. Videocon Industries Limited)

8. 2014 (2) SCC (LS) 804 (Balwant Rai Saluja Vs. Air India Limited)

3. Per contra, the learned senior counsel for the Respondent, relying upon the notice dated 23.04.2013, contended that the respondent has a claim against the petitioner and only for that reason, the demand of the petitioner was denied. The learned senior counsel also contended that the provisions of Sections 433 (3) and 434(1) of the Companies Act can be invoked, only if the debtor company is unable to pay its debt and in the instant case, the refusal is on account of denial of liability. Hence, according to the learned senior counsel, the Company Petition for winding up is not maintainable. The learned senior counsel also contended that to enforce the award, it is incumbent upon the Petitioner to only file an execution petition and no permission was granted by this Court to file a winding up petition. The learned senior counsel also contended that the order in O.P.No.56/2014 has not become final and that the appeal in O.S.A SR.No 69044/14 has been preferred. The learned senior counsel, contending that there is no accepted liability, relied upon the decision of athe Honourable Supreme Court reported in 2010 (10) SCC 553 (IBA Health (India) P Limited Vs. Info Drive Systems SDN.BHD) and sought for dismissal of this Company Petition.

4. This court heard the learned counsel on either side and also perused the documents.

5. This court is inclined to take up the issue of maintainability of the petition as first issue.

6. The learned senior counsel for the Respo