THOMAS T G Vs. ALEXANDER VAIDYAN

JUDGEMENT

(1.) A petition was filed by petitioner before the Sub Court, under Sections 7 and 9 of the Kerala Insolvency Act ('the Act', for short), for adjudging him as an insolvent. In the said petition, an interlocutory application was also filed by petitioner to stay the order of arrest issued against him by the same court in an Execution Petition. After hearing both sides, the Sub Court dismissed the interlocutory application and the said order is challenged in this petition. According to petitioner, he has no sufficient means to pay the debt due to respondent, but the Sub Court issued a warrant of arrest against him in an Execution Petition. Having filed a petition under Section 7 of the Act, the court below ought to have adjudicated the matter and pending disposal of the Insolvency Petition, a stay of the arrest ought to have been granted, it is contended. A mere pleading that petitioner is not having means is sufficient to entertain the Insolvency Petition but, the court below failed to consider this aspect and refused to grant a stay and dismissed the petition for stay and hence, this petition is filed to set aside the said order.

(2.) Heard both sides. The maintainability of the Insolvency Petition itself is challenged in this petition. Learned counsel for respondent argued that in the light of the various provisions contained in the Act and also on the facts of this case, the Insolvency Petition filed by petitioner before the court below is not maintainable. Learned counsel appearing for petitioner, argued that all the requirements of law for filing an Insolvency Petition are satisfied in this case and hence, the Insolvency Petition cannot be treated as not maintainable.

(3.) Learned counsel for petitioner also argued that as per Section 13 of the Act, a mere pleading that petitioner has no means by itself is sufficient to entertain the Insolvency Petition and there is such a pleading in the petition. It is also submitted that there is absolutely no document to show that petitioner is having any means to pay the debt. Therefore, petitioner has every chance to succeed in the insolvency petition and court below ought to have granted an interim order staying the arrest ordered in the Execution Petition, it is argued.