T J RAJU Vs. P R NEELAKANTAN

JUDGEMENT

(1.) The petitioning creditor P.R. Neelakantan issued Insolvency Notice No. 61 of 1989 demanding the debtor T. J. Raju to discharge the amount due to him viz. Rupees 53,020/-, consisting of Rs. 25,520/- representing the decree amount, Rs.12,000/- representing the rent from August, 198 5/03/1986 and Rs.15,800/- representing the rent from April, 1986 to 10-2-1987. 31 days time had been given for complying with the notice. The judgment-debtor in fact within this time limit, did not comply with the notice. But what he did was that he, prior to the filing of the Insolvency Petition by the petitioning creditor, came forward with the present application for setting aside the insolvency notice on the lone and sole ground of this Court not having any territorial jurisdiction in the sense of himself residing and profitably employed at Delhi in Avery India Limited, from March, 1988 till date. In substantiation of his claim, he examined himself as P.W.1 and marked the employer's certificate as Ex. P-1, besides marking the envelope containing the insolvency notice as Ex. P-2, redirected and received at Delhi. The petitioning creditor also marked Ex. R-1, the acknowledgment purported to have been signed by one of the peons in the office where the judgment-debtor is working. From the evidence of P.W. 1 and Exs. P-1 and P-2, it is rather very clear that the judgment-debtor is working and residing at Delhi from March, 1982.

(2.) The next question that falls for consideration is whether lack of territorial jurisdiction can be construed as a ground to set aside the insolvency notice, when adimittedly the salient provision adumbrated under Section 9(5) of the Presidency Towns Insolvency Act does not constitute such ground for setting aside the insolvency notice. It is implicitly necessary to understand that the issue of the insolvency notice is after all of a peculiar nature, and is a step in aid for the institution of insolvency petition or the adjudication of the debtor as an insolvent if he happens to commit an act of insolvency as contemplated under the provisions of the Act. The act of insolvency complained of in this case is not only the non-payment of the decree amount but also the rental arrears for specified periods mentioned in the insolvency notice. There was no demur whatever from the debtor that the amount demanded from him consisted of amounts other than the amount due under the decree, in respect of which alone the judgment-debtor could be stated to have committed an act of insolvency, if he had not complied with the payment of the sums mentioned in the insolvency notice. As such, there is no need to revel in such question, not at all raked up by the debtor. For appreciating the question involved, it is but necessary to have an insight into the provisions of Sections 10 and 11 (b) of the Act. Section 10 of the Act deals with the power to adjudicate and the section itself opens with the phraseology, "subject to the conditions specified in this Act" and further prescribes that if a debtor commits an act of insolvency, an insolvency petition may be presented either by a creditor or a debtor and the Court may on such petition, make an order adjudging him as an insolvent. Section 11 deals with restrictions on jurisdiction and clause (b) of that section, which is necessary for our purpose, is couched in the following terms :

(3.) In the result, the application is allowed is prayed for. No costs. Application allowed.