Sicom Ltd vs 1) Hargovind Laxmishankar Joshi, ...
2017 Latest Caselaw 6341 Bom

                                    1                               33.inpt-43.07.doc

sbw            IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                      ORDINARY ORIGINAL CIVIL JURISDICTION


                         INSOLVENCY PETITION NO.43 OF 2007


      Re: Hargovind Laxmishankar Joshi & Ors.                 .. Debtors
      Exparte :-
      SICOM Limited                                           ..Petitioning Creditors


      Ms. Jaymala Raut for petitioning creditor.
      None for debtor.


                                          CORAM : A.K. MENON , J.

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

1. In this petition, the issue pertaining to maintainability of the insolvency

petition had been raised as in the case of insolvency petition no.9 of

2007. In view of the challenge to maintainability the matter came to

be adjourned from time to time till 20 th July, 2015. This Court took a

view on the maintainability of the insolvency petition on the basis of an

order passed under Section 31(1) (aa) of the State Financial

Corporation Act.

2. An appeal filed against the said order has since been withdrawn

confirming the aforesaid position. None appears for the debtors, in

fact the debtor had not appeared since 19 th April, 2016.

3. The Advocate for the judgment debtor no.2 has filed an affidavit in

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reply dated 30th November, 2007 in which it is contended that the

decree obtained by the SICOM Ltd. was an exparte decree that the

judgment debtor no.2 had not been served with any papers except the

copy of the petition. He has denied the liability to pay any amounts to

the Corporation and has sought dismissal of the petition.

4. In an affidavit in rejoinder dated 7 th December, 2007 filed on behalf

of the Corporation, the deponent has stated that the writ of summons

in the suit was served by substituted service since the debtor had

avoided service by all normal modes and family members feigned

ignorance of the whereabouts of the judgment debtor no.2 at the

relevant time. In fact the judgment debtor's Advocate sought to deny

the claim. Copies of the notice published is attached to the affidavit in

rejoinder. Subsequently, in a letter dated 1 st December, 2007

addressed by the Advocates of the petitioning creditor to the advocates

of the judgment debtor it is clarified that all papers have been served.

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5. On behalf of defendant no.2 an affidavit in sur-rejoinder dated 7

January, 2008 had been filed in which he reiterates that he had not

been served with the papers in the Suit. He has denied that the

petitioning creditor is entitled to the decretal amount and contended

that he has every right to challenge the exparte decree by taking out

appropriate proceedings and therefore he has not committed any act of

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insolvency. In paragraph 8 of the sur-rejoinder the deponent states

that the exparte decree against him and the other debtors will not be

binding. The decree is dated 2 nd May, 2005. The insolvency petition is

filed on 28th April, 2007. Insolvency notice dated 21st November, 2006

was also served upon the judgment debtor no.2. Furthermore, although

the affidavit in reply is filed on or about 30 th November, 2007 and a

sur-rejoinder is filed on 7th January, 2008 this affidavit discloses that

the debtor has not taken any steps to challenge the said decree.

6. In the circumstances, there is no substance in the defence. In view of

the order passed in notice of motion no.34 and 35 of 205 in insolvency

petition no.11 of 2014 dated 28 th July, 2015 maintainability of this

petition cannot be now called into question. The judgment debtor

no.2 has not been represented by its Advocate after 5 th July, 2016, on

19th July, 2016, 7th March, 2017, 20th June, 2017 and 4th July, 2017.

Even today they are absent. I therefore pass the following order:-

(i) 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 and shall become divisible amongst the insolvents

creditors.

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

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

Financial, 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.

(A.K.MENON, J.)