Madras High Court

Palanimuthu vs E.Rajamanickam on 29 June, 2021

                                                                                     C.M.S.A.No.35 of 2015



                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                        DATED : 29.06.2021

                                                               CORAM

                              THE HONOURABLE MR.JUSTICE S.M. SUBRAMANIAM

                                                     C.M.S.A.No.35 of 2015

                     Palanimuthu,
                     S/o.Kandappa Gounder                                    .. Appellant

                                                                -vs-

                     1.E.Rajamanickam

                     2.A.Krishnaveni                                         .. Respondents

                                   Appeal filed under Section 75(1) of the Provincial Insolvency Act
                     read with Section 100 of the Code of Civil Procedure against the order dated
                     26.06.2015 made in C.M.A.No.8 of 2014 on the file of the Principal District
                     Court, Namakkal, confirming the fair and final order dated 24.02.2014 made
                     in I.P.No.3 of 2010 on the file of the Sub Court, Tiruchengode.

                                        For Appellant      :     Ms.D.Sathya
                                                                 for Ms.Zeenath Begum

                                        For R1             :     Refused

                                        For R2             :     No appearance



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                                                                                   C.M.S.A.No.35 of 2015




                                                       JUDGMENT

This Civil Miscellaneous Second Appeal is filed challenging the fair

and decretal order dated 26.06.2015, passed in C.M.A.No.8 of 2014 on the

file of the Principal District Court, Namakkal, confirming the fair and final

order dated 24.02.2014, made in I.P.No.3 of 2010 on the file of the Sub

Court, Tiruchengode.

2.The insolvency petition in I.P.No.3 of 2010 was originally filed by

the appellant under Section 9 of the Provincial Insolvency Act, 1920

(hereinafter referred to as “the Act”) to pass an order to adjudge the first

respondent as an insolvent and permit him to take steps to set aside the Sale

Deed dated 26.08.2009, subsequent to the adjudication of insolvency

petition.

3.The substantial question of law raised in this Civil Miscellaneous

Second Appeal is, whether the judgment of the Courts below are vitiated on

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the ground that they failed to see that the date of presentation of Insolvency

Petition was on 23.11.2009 and therefore, well within the period of

limitation prescribed under Section 9(1)(c) of the Act.

4.The very substantial question of law raised is with reference to the

limitation, as the appellant claims that he filed the petition within the period

of limitation and the Court passed an order dismissing the petition as 'time

barred'.

5.In this context, when the matter is taken up for final hearing, this

Court verified page 6 of the typed set of papers filed by the appellant, which

is the xerox copy of the docket sheet of I.P.No.3 of 2010. This Court could

able to see that there was some discrepancy in affixing the court seal. The

seal of Sub Court, Tiruchengode was affixed on 23.11.2009 and under the

said seal, the original seal was found, which was dated 26.08.2010. The

23.11.2009 seal was affixed above the seal dated 26.08.2010 and therefore,

this Court raised a doubt regarding the genuinity and reliability of the seal

dated 23.11.2009 for the purpose of reckoning the period of limitation. This

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Court passed an order on 01.03.2021 directing the learned Sub Judge,

Tiruchengode to send the original files pertaining to I.P.No.3 of 2010 along

with a report regarding the date of filing of the Insolvency Petition by the

appellant. Pursuant to the orders passed by this Court, the learned Sub

Judge, Tiruchengode sent the original files along with a report dated

16.03.2021. The learned Sub Judge, in his report, has stated as hereunder:-

“I further humbly submit that on careful perusal of the records, which reveals that the I.P.No.3/2010 was originally filed before the Sub Court, Tiruchengode on 23.11.2009. The same was returned for mistakes on 27.11.2009. Subsequently, the petition was once again filed before the Sub Court, Tiruchengode on 21.6.2010 after rectifying the mistakes. I humbly submit that the same was once again returned on 25.6.2010 as the previous returns had to be complied. I further humbly submit that the said I.P. petition was once again re- presented in the court after rectifying the errors on 25.8.2010 and the court seal was affixed on 26.8.2010. The petition was taken on file by the court on 8.9.2010 and I.P.No.3/2010 was assigned. I most humbly submit that the petition was dismissed after full trial on 24.2.2014.

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I most humbly submit the report, along with necessary enclosures, for my Lord's kind perusal and consideration, and I beg to pray that the same may be accepted and recorded.”

6.This Court was not satisfied with the report submitted by the

learned Sub Judge, Tiruchengode, as the discrepancy pointed out by this

Court was not clarified. The report of the learned Sub Judge, Tiruchengode

reveals that he has not verified the original records properly and prepared

the report. Contrarily, the report reflects the facts stated by the appellant for

saving the period of limitation. Thus, the said report is not reliable and the

learned Sub Judge, Tiruchengode has not applied his mind, nor verified the

original records and submitted a report. Such a conduct of the Judicial

Officer is not appreciable, when the High Court has pointed out the

discrepancy specifically in its order and directed the learned Sub Judge,

Tiruchengode to verify the original records and submit a report.

7.On 18.03.2021, this Court directed the learned Principal District

Judge, Namakkal to conduct an enquiry with reference to the seal affixed in

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the original case papers as well as the other documents and submit a report

within fifteen days. Pursuant to the directions, the learned Principal District

Judge, Namakkal submitted his report on 05.04.2021 clearly stating that

there was a manipulation and falsification of records. The detailed report of

the learned Principal District Judge, Namakkal concludes by enumerating as

follows:-

“On the whole, I am of the view that CFR 19 Register No.4953 was allotted to receiving of written statement of D1 in O.S.61/2009 on 21.11.2009 itself. It could not be possible to allot to such number to receive IP petition on 23.11.2009 which would have been inserted with ulterior motive purposely as if it had been filed on 23.11.2009. This activity shall be deprecated with iron hand.

I am of the view that for the abovesaid action, stringent departmental action has to be initiated against the concerned court staff. The suitable direction has been given to the Sub Judge, Tiruchengode to call for the explanation from the concerned erring staff and to initiate departmental enquiry in this regard. I further humbly submit that since the matter is pending before the Hon'ble High Court of Judicature, Madras in CMSA

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No.35/2015, I am soliciting instructions from the Hon'ble High Court of Judicature, Madras for further course of action.

Thus, I submit this for favour of Honour's kind consideration and soliciting instructions to proceed further in this regard.”

8.The above findings of the learned Principal District Judge,

Namakkal are sufficient to form an opinion that the appellant, in collusion

with the staff of the Court concerned, manipulated the seal in order to save

the limitation and accordingly, filed this appeal. Thus, the appeal is not

entertainable and accordingly, is dismissed.

9.With reference to the report dated 05.04.2021, the learned Principal

District Judge, Namakkal is directed to initiate all further actions including

criminal action and departmental action against all the persons involved in