Bombay High Court
S.P.Builders And 3 Ors vs Ex-Parte Creation Publicity Pvt ... on 9 December, 2021
Bench: G.S. Patel, Madhav J. Jamdar
901-OSIA-1670-2020 IN APP-56-2021 WITH IA-1669-2020 WITH IA-2471-2020.DOC
Arun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
IN ITS INSOLVENCY JURISDICTION
APPEAL NO. 56 OF 2021
IN
INSOLVENCY PETITION NO. 38 OF 2018
SP Builders & Ors ...Appellants/
Judgment
Debtors
Ex-Parte:
Creation Publicity Pvt Ltd ...Respondent/
Petitioning
Creditor
WITH
INTERIM APPLICATION NO. 1670 OF 2020
WITH
INTERIM APPLICATION NO. 1669 OF 2020
WITH
INTERIM APPLICATION NO. 2471 OF 2020
ARUN
RAMCHNDRA
SANKPAL
Digitally signed by
Mr Vivek Kantawala, with Amey Patil, Amit Sheth & Kailas Surve,
ARUN
RAMCHNDRA i/b Amit Sheth, for Appellants.
SANKPAL
Date: 2021.12.10
15:18:16 +0530
Ms Shreya Parikh, with Uttam S Rane, for the Respondent.
CORAM G.S. Patel &
Madhav J. Jamdar, JJ.
DATED: 9th December 2021
9th December 2021
901-OSIA-1670-2020 IN APP-56-2021 WITH IA-1669-2020 WITH IA-2471-2020.DOC
PC:-
1. No settlement is possible. We take up the appeal itself.
2. This Appeal is from an order dated 5th November 2019 of the
learned single Judge. The appeal has been assigned to this Court.
The Respondent was the Petitioning Creditor. It claimed an amount
of Rs. 41,75,505.12/- and further interest on Rs. 15 lakhs at 9% per
annum from 23rd February 2017 till payment. This was the subject
of the Insolvency Notice dated 10th March 2017. The Insolvency
Notice was served. The debtors then took out a Notice of Motion to
set aside the insolvency notice. That Motion was dismissed by an
order of 4th October 2019. The debtors did not pay any amount or
then take any further proceeding in regard to the Insolvency Notice.
Consequently, the Petitioning Creditor filed Insolvency Petition No.
38 of 2018. This was served on the Judgment Debtors. They filed an
Affidavit in Reply opposing the Petition. Essentially the Judgment
Debtors claimed a set off.
3. By the impugned order dated 5th November 2019 the learned
Single Judge held that the defence raised by the
Appellant/Judgment Debtor would not absolve it from the act of
insolvency which was complete. The Petition was allowed and
Appellants Nos. 2, 3 and 4 were adjudicated insolvents.
4. We are told that after the order under appeal, nothing
substantial has happened in the Insolvency proceedings, viz., the
private examination is not yet concluded, no filings of assets etc
9th December 2021
901-OSIA-1670-2020 IN APP-56-2021 WITH IA-1669-2020 WITH IA-2471-2020.DOC
have been made before the Insolvency Registrar and the public
examination has not commenced. Hence, on record, the
Respondents' claim is even now the only one against the Appellants.
5. Mr Kantawala for the Appellants on instructions states that
the entire claim of the Petitioning Creditor with interest computed
until tomorrow will be deposited with the Insolvency Registrar by 5
pm on Monday, 13th December 2021. The Appellants also agree to
deposit the entire amount of costs of Rs.50,000 previously ordered
by Mr Justice KR Shriram.
6. Upon that deposit being made, and without any assessment
on merits, the Appeal will stand allowed and the order of 5th
November 2019 of the learned Single Judge will stand set aside. The
Insolvency Petition will then stand dismissed.
7. The Petitioning Creditor/Respondent in the Appeal will be
entitled to withdraw the entire amount deposited in full and final
satisfaction of its decretal or judgment debt. The decree will then
stand marked fully satisfied. Upon that being done, all execution
proceeding initiated by the Respondents will also stand dismissed as
infructuous and all attachments will stand raised.
8. In the event that the amount is not deposited by that date, and
there will be no extension of time, this Appeal will stand summarily
dismissed without further reference to the Court. Further, on a
failure to make the deposit in full, execution will continue unaffected
by this order.
9th December 2021
901-OSIA-1670-2020 IN APP-56-2021 WITH IA-1669-2020 WITH IA-2471-2020.DOC
9. Lastly, it is made clear that if the original Petitioning Creditor
has any other as-yet unadjudicated claim against the Appellant it is
fully at liberty to pursue all its remedies in that regard. All
contentions in that regard are kept open. We say this because Ms
Parikh candidly states that the Respondents have another claim
against the Appellants on a cause of action that is said to have arisen
in 2020, but which claim has not yet been adjudicated in any court
of law. The Respondents have not yet filed a suit or obtained a
decree. The claim is said to be based on an admission. But the
present Respondents must still get that claim adjudicated first. The
pendency of a mere claim cannot and will not bar the Appellants
from coming out of insolvency by paying the entire claim of the
Respondents/Petitioning Creditors.
10. All IAs are disposed of in the same terms.
11. All concerned will act on production of a digitally signed copy
of this order.
(Madhav J. Jamdar, J) (G. S. Patel, J)
9th December 2021
