Single judge order refusing to set aside an insolvency notice. The court held that the debtor's lack of service in prior proceedings was not a valid ground since he had failed to challenge the decree, file a written statement, or appeal the judgment.
The Motion for setting aside the Insolvency Notice is rejected.
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
IN ITS INSOLVENCY JURISDICTION
NOTICE OF MOTION NO.3 OF 2005
IN
INSOLVENCY NOTICE NO.N/129 OF 2001
M/s.Omkar Binding Works & Ors...Judgment Debtors.
Ex-parte
Bombay Mercantile Co-operative
Bank Ltd. ..Judgment Creditors.
Mr.T.N.Tripathi i/b Mr.S.K.Tambawalla for Judgment
Creditors.
Mr.Prakash Shah for Judgment Debtor No.6.
CORAM : DR.D.Y.CHANDRACHUD, J.
15th March, 2005.
P.C.:
The Insolvency Notice is founded on a
decree of the Co-operative Court dated 26th
December, 2000 for the recovery of an amount of
Rs.27,38,303/- together with interest at the rate
of 15.5% per annum from 1st October, 1996 till
2
realization.
The sole ground which is urged in support
of the Motion for setting aside the Insolvency
Notice is that the Applicant, who is original
Judgment Debtor No.6 was not served with the
proceedings before the Co-operative Court. In
paragraph 2(d) of the judgment and order dated 26th
December, 2000, the Co-operative Court has
mentioned that Opponent Nos.1, 2, 4 , 5 and 6
before that Court but they did not file their
written statement. In the circumstances, there is
no merit in the submission. Besides the Applicant
has not moved any proceedings either for setting
aside the judgment and order dated 26th December,
2000 or by carrying the matter in appeal to the
Co-operative Appellate Court. In the
circumstances, there is no merit in the Motion,
which is accordingly rejected.
2 issues framed by the court
Whether the insolvency notice issued to the judgment debtor, who was not served with the judgment debt proceedings, should be set aside.
Whether there is any merit in setting aside the insolvency notice without any challenge to the decree for recovery made against the debtor.
M/s. Omkar Binding Works & Ors.
Bombay Mercantile Co-operative Bank Ltd.
D.Y. Chandrachud
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court