Madras High Court
R.Chandra vs N.Allimuthu on 22 March, 2022
CMSA.No.32/2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 22.03.2022
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
CMSA.No.32/2018
R.Chandra ... Appellant/2nd Respondent/
Respondent/Petitioner
Versus
1.N.Allimuthu
2.G.Chinnaraju
3.Selvambal ... Respondents/Appellants/
1 to 3 Petitioners/Respondents 26,29,35
4.Kannammal
5.R.Dhanapal
6.R.Manimekalai
7.R.Manikandan
8.R.Prabhakaran ... Respondents/Respondents 3 to 7/
4 to 8 Petitioners/Respondents 38 to 42
9.R.Ravichandran
10.R.Jayaraj ... Respondents/Proposed Party
Prayer : - Civil Miscellaneous Second Appeal filed under Section 100 of
CPC to set aside the fair and decreetal order in CMA.No.8/2017 dated
19.04.2018 passed by the learned II Additional District Judge, Salem by
1
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CMSA.No.32/2018
reversing the fair and decreetal order in I.A.No.12/2016 in I.P.No.56/2000
dated 02.02.2016 passed by the learned Principal Subordinate Judge, Salem.
For Appellant : Mr.B.Gopalakrishnan
For R1 to R3 : No appearance
For R4 to R8 : Mr.N.Manoharan
JUDGMENT
(1) Two petitioners, M.R.R.Rajamanickam and his wife Mrs.R.Chandra,
had both jointly filed an Insolvency Petition in IP.No.56/2000 before
the Principal Sub Court at Salem, in what can be termed as Debtors
Petition, seeking to declare themselves as insolvents in view of the
loans which they have had accrued having borrowed them from
various creditors.
(2) The said Insolvency Petition did not move forward in its normal way.
The list of creditors had been declared in the Schedule of the
Insolvency Petition. Thereafter, the petitioners had taken a decision to
withdraw the Insolvency Petition. That is not possible in law. The
learned Subordinate Judge also rejected the request to withdraw the
Insolvency Petition. They took the alternate method, and permitted
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CMSA.No.32/2018
the Insolvency Petition to be dismissed for non prosecution. Even that
order by the learned Subordinate Judge can be scrutinised by this
Court since the Insolvency Petition, if rights had accrued to the
creditors, cannot be dismissed for non prosecution. The learned
Principal Subordinate Judge also appointed an Official Receiver to
collect rents from the property to which they were entitled. At that
particular point of time, an Interlocutory Application came to be filed
in the Insolvency Petition, questioning the dismissal of the Insolvency
Petition for default/non prosecution. This Interlocutory Application
had been filed by three of the creditors.
(3) That application came up for consideration again before the learned
Principal Sub Court, Salem and the Court, by an order dated
02.06.2016, had dismissed the said Interlocutory Application, namely,
IA.No.12/2016.
(4) An appeal was taken up by the three creditors before the District
Court and CMA.No.8/2017 came up for consideration before the
learned II Additional District Judge, Salem. The Appellate Court, by a
judgment dated 19.04.2018, reversed the order passed in
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CMSA.No.32/2018
IA.No.12/2016 and restored IP.No.56/2000 for further adjudication
by the Principal Sub Court.
(5) In the meanwhile, Mr.M.R.R.Rajamanickam had unfortunately died
and his two sons, Tvl.R.Ravichandran and R.Jayaraj, were impleaded
as respondents. Questioning the judgment of the learned II Additional
District Judge, Salem, dated 19.04.2018 in CMA.No.8/2017,
Tmt.R.Chandra, who was the only petitioner surviving, had filed the
present CMSA.No.32/2018.
(6) Before this Court, on 10.03.2022, the Official Receiver was also
present and he had also submitted statement with respect to the retns
which had been collected by him. But, yet another intervening
circumstance has arisen, namely that the appellant, R.Chandra, had
also died. This fact had been stated by the Official Receiver who had
filed a Memo on 09.03.2022. Since the date of the death of both
M.R.R.Rajamanickam and Chandra are not available, let me extract
the relevant paragraph of the Memo of the Official Receiver in
entirety:-
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CMSA.No.32/2018
''7.The 1st petitioner in IP.No.56/2000 on the file of the
Principal Sub Judge Court, Salem, namely
M.R.R.Rajamanickam has died long back during the
pendency of IP and CMA proceedings and after filing
of CMSA No.32/2018 before the Hon'ble High Court
of Madras, the 2nd petitioner in IP.No.56/2000 and
appellant in CMSA.No.32/2018 before this Hon'ble
Court namely Chandra also died. No steps have been
taken in both IP.No.56/2000 on the file of Principal
Sub Judge Court, Salem as well as in CMSA
No.32/2018 before Hon'ble High Court of Madras in
this regard.''
(7) I am further informed that Mr.M.R.R.Rajamanickam had died on
04.07.2018. In view of the fact that the appellant herein had died, but
further that the legal representatives are also shown as respondents,
the appeal cannot proceed further and I would rather dismiss the
present Civil Miscellaneous Second Appeal, but IP.No.56/2000 is
remanded back to the Principal Sub Court, Salem and the learned
Principal Subordinate Judge, Salem, may now take a considered
decision on the following aspects:-
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CMSA.No.32/2018
(a) The effect of the death of both the petitioners in IP.No.56/2000.
(b) The effect of appointment of an Official Receiver who had been
collecting the rents and a decision to be taken on the rents which
had been collected and whether, since the petitioners had not been
declared as insolvents, to apportion the collected rents among the
creditors or to return the rent back to the legal representatives /
sons of the petitioners.
(c) If apportionment is to be done, then whether all the creditors can be
joined as possible sharers in the apportionment or only the three
creditors, who have now questioned the order in IA.No.12/2016 by
filing CMA.No.8/2017 would alone be entitled to a share in
accordance with their claim?
(d)An adjudication on the claim petitions would also have to be
undertaken by the learned Principal Subordinate Judge, Salem.
(8) All these aspects and any other issue which arises for consideration
will have to be decided and determined by the learned Principal
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CMSA.No.32/2018
Subordinate Judge, Salem, as the Court of the first instance where
IP.No.56/2000 has been revived by order dated 19.04.2018 in
CMA.No.8/2017 by the learned II Additional District Judge, Salem.
(9) The present Civil Miscellaneous Second Appeal is dismissed. No
costs.
22.03.2022
AP
Internet : Yes
To
1.The II Additional District Judge, Salem.
2.The Principal Subordinate Judge, Salem.
3.The Section Officer
VR Section, High Court,
Madras.
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CMSA.No.32/2018
C.V.KARTHIKEYAN, J.,
AP
CMSA.No.32/2018
22.03.2022
https://www.mhc.tn.gov.in/judis
