Sicom Ltd vs 1) Aloysius Mendes, 2) Ram Gopal ...
2017 Latest Caselaw 6190 Bom

                                           1                             32.inpt-9.07.doc

sbw            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      ORDINARY ORIGINAL CIVIL JURISDICTION

                        INSOLVENCY PETITION NO. 9 OF 2007

      Re.: Aloysius Mendes & anr.                             .. Debtors
      Exparte:-
      SICOM Limited                                           .. Petitioning Creditors


      Ms. Jaymala Raut for petitioning creditor.
      Mr. Vikas R. Singh i/b. Lambay & Co. for debtor no.2.

                                         CORAM : A.K. MENON , J.

DATED : 16TH AUGUST, 2017 P.C. :

th

1. This matter has remained pending in view of an order dated 20 July,

2015 passed by this Court wherein it is observed that this Court does

act as a civil Court under Section 31(1)(aa) of the State Financial

Corporation Act and that notice issued under Section 9(2) of the

Insolvency Act was valid. An appeal came to be filed against the said

order in subsequent and the matter came to be adjourned on 20 th July,

2015 in notice of motion no.34 of 2014 and 35 of 2014 in insolvency

notice no.11 of 2014 the Single Judge had taken a view that insolvency

petition would be maintainable. Since the order passed by this Court

under Section 31 of the State Financial Corporation Act, 1951 would

entitle them to pursue the petition, the order came to be challenged

and the matter was adjourned sine die.

2. Today, both counsel agreed that the appeal was disposed of since the

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matter came to be amicably settled. In the circumstances, the view of

the Single Judge holds field and there is no bar on proceeding with the

present matter.

3. The judgment debtor no.2 is represented by counsel today who states

that in affidavit in reply dated 13 th December, 2007 he has raised the

issue of jurisdiction and maintainability. These issues however now

been settled by virtue of the order dated 20 th July, 2015. He further

states that his client was a guarantor and as set out in the affidavit he

had pointed out that at the material time the affairs of the company

were not being carried on in a satisfactory manner and that he had

subsequently resigned as a Director resulting in a Managing Director

being appointed by the Corporation. He therefore claims that the

guarantee stands discharged.

4. I have heard the parties. I am of the view that the principal

contention of the respondent no.2 is as to maintainability of the

petition which is already settled. The contention that the guarantee

stands discharged by virtue of his resignation cannot be accepted since

these neither factual nor legal basis for such a proposition. In the

circumstances, I pass the following order:-

(i) The petition is made absolute in terms of prayer clause (a).

(ii) The Official Assignee is hereby appointed of the properties of the

insolvent wherever situated which shall vest in the Official Assignee

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and shall become divisible amongst the insolvents creditors.

(iii) The Official Assignee also to take necessary steps in accordance

with the Circular dated 14th October, 2011 issued by Ministry of

Finance, Department of Revenue (Central Board of Direct Taxes), New

Delhi and to invest the amount so realised from the insolvents with

any of the Nationalized Banks.

5. At this stage, the learned counsel for the respondent seeks stay of the

operation of the order. Request is declined.

(A.K.MENON, J.)