PRABHAKARAN Vs. V RAJENDRAN

JUDGEMENT

(1.) THIS appeal arises out of the order dated 01.11.2010 in Application No.355 of 2010 in I.P.No.95 of 2009 on the file of this Court, whereby the learned single Judge has ordered attachment of 50 percent of appellant's salary.

(2.) CASE of first respondent/petitioning creditor is that appellant was running chits and requested the first respondent to join his chit as one of the subscribers. Believing the words of appellant and considering that he is working as a Central Government employee, the first respondent joined one Rs.2 lakhs chit and one Rs.1 lakh chit. The first respondent was declared as Prized subscriber in respect of the above two chits. The appellant had postponed the repayment of the prized amount. Upon demand of the first respondent, the appellant had issued cheque for a sum of Rs.80,00,000/- dated 27.7.2005 bearing Cheque No.979055 drawn at Indian Bank, Velachery Branch, Chennai. On the same day, the appellant had also executed a demand promissory note for a sum of Rs.2 lakhs dated 27.5.2005 agreeing to repay on demand with interest at the rate of 24 percent per annum. CASE of first respondent is that inspite of several requests made by him for repayment of the chit amount, the appellant failed to pay the prized chit amount. The first respondent filed O.S.No.1594 of 2008 on the file of the 4th Assistant Judge, City Civil Court, Chennai. After contest, the said suit was decreed in favour of the first respondent on 08.07.2008 directing the appellant to pay a sum of Rs.4,53,600/- together with interest at 24% per annum on the suit claim of Rs.2,80,000/- from the date of plaint till date of realisatlion and further sum of Rs.35,038/- towards costs. Further case of first respondent is that even after decree has been passed in the said suit, appellant failed to pay the decree amount and therefore, the first respondent filed Insolvency Notice No.87 of 2008 under Section 9(2) of P.T.I. Act stating that the appellant has committed an act of insolvency. In the Insolvency Petition, the appellant did not appear and by the order dated 15.03.2010 made in I.P.No.95 of 2009, the appellant was declared as insolvent and the Official Assignee was directed to take over the assets of the insolvent and administer the estate of the insolvent in a regular manner for the benefit of creditor.

(3.) HEARD the learned counsel for the appellant. Learned counsel for the appellant has submitted that the first respondent has obtained a money decree for Rs.4,53,600/- in O.S.No.1594 of 2008 dated 08.07.2008 and instead of executing the decree before the competent Court, the first respondent has adopted short cut method in filing the insolvency petition in I.P.No.95 of 2009 by invoking the provisions under the Presidency Town Insolvency Act to adjudicate the appellant as insolvent. It was further submitted that since the appellant is a Government servant, he could not enter appearance in I.P.No.95 of 2009 on the hearing date and his counsel also met with the road accident after entrusting of vakalat and the counsel recovered from illness only after five months and the learned single Judge did not keep in view the inability of the appellant to contest the matter. Learned counsel would further contend that the order of attachment passed in the insolvency petition is only a short cut method to execute the decree and the learned single Judge was not right in ordering attachment.