Single judge set aside an ex-parte order of adjudication passed on 4.3.2008 in an insolvency proceedings, noting the debtor's physical presence and the failure of their advocate to reach the court.
The ex-parte order of adjudication dated 4.3.2008 is hereby set aside and the Notice of Motion is allowed.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
IN INSOLVENCY
NOTICE OF MOTION NO. 21 OF 2008
IN
PETITION NO. 80 OF 2007
Re: (1) Om Prakash Nihlani
alias Nihalani
(2) Jairam J. Nihlani
alias Nihalani
..Debtors
Ex-parte :-
Shiromani Manohar Singh ..Petitioning
Thakur Creditor
Mr. P. V. Shah for the Petitioning Creditor.
Mr. P. V. Nichani for the Debtors.
Mr. A. P. Kothari, Dy. Official Assignee
present.
CORAM : S. A. BOBDE, J.
DATE : 2ND SEPTEMBER, 2008.
P.C.
. Heard.
2. This is an application for setting aside the
order of adjudication passed by this Court on
4.3.2008. Apparently the matter was at Sr. No.
102 and the Board had been discharged upto 3 p.m.
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Debtor No.1 was present in court. However, when the
electronic board displayed Sr. No. 80, the Debtor
No. 1 called his Advocate. But by the time the
Advocate reached, the matter was disposed of in
terms of prayer clauses (a) and (b) as prayed by the
Petitioning Creditor.
3. The application has been opposed by the
learned counsel for the Petitioning Creditor, mainly
on the merits of the matter. The Petitioning
Creditor has pointed out the indebtedness of the
Debtors. However from the nature of the averments
made by the Debtors, the Petitioning Creditor has
not effectively denied the allegations of the
Debtors for the reasons why their Advocate could not
reach when the matter was argued.
4. Having regard to these circumstances, the
exparte order of adjudication dated 4.3.2008 is
hereby set aside. The Notice of Motion is allowed.
5. The petition is fixed for hearing on
16.9.2008.
(S. A. BOBDE, J.)
2 issues framed by the court
Whether the ex-parte order of adjudication dated 4.3.2008 should be set aside due to the absence of the debtor's advocate.
Whether the Notice of Motion to set aside the order of adjudication is allowed.
2 provisions across 1 enactments
Shiromani Manohar Singh
Om Prakash Nihlani
Jairam J. Nihlani
S. A. BOBDE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court