UTTAMCHAND Vs. T JOSEPH BENZINGER

JUDGEMENT

(1.) THIS appeal arises out of the order in A.No.40 of 2009 in I.P.No.76 of 2007 dated 13.4.2009 whereby the learned single Judge set aside the exparte order dated 25.08.2008 made in I.P.No.76 of 2007 against the 1st Respondent.

(2.) BRIEF facts are that 1st Respondent borrowed a sum of Rs.3,25,000/- from Mohana Jagadeesan on 01.11.1993 agreeing to repay the same with interest at the rate of 24% p.a. and executed a Promissory Note. The said Mohana Jagadeesan assigned the promissory note to one D.Anand who filed a suit for recovery of the money in C.S.No.772 of 1996 and the same was decreed on 10.04.1997. The said Anand assigned the decree to the Appellant. Since the 1st Respondent failed to repay the decree amount even after passing of the decree in the suit, Appellant filed an application in I.N.No.190 of 2003 for issue of Insolvency notice to the 1st Respondent and the said Insolvency notice sent to the 1st Respondent was served. Case of Appellant is that even after service of Insolvency notice, the 1st Respondent failed to comply with the Insolvency notices by making payment of the amount mentioned therein. 1st Respondent filed A.No.160 of 2004 in I.N.No.190 of 2003 to set aside the Insolvency notice No.190 of 2003 ordered against him. By an order dated 15.02.2005, the said A.No.160 of 2004 was dismissed by the learned single Judge.

(3.) ASSAILING the impugned order, Mr.A.Thiagarajan, learned Senior Counsel for Appellant has submitted that even when the 1st Respondent has not shown any sufficient cause for non-appearance and also for the inordinate delay, the learned single Judge erred in setting aside the exparte order. Learned Senior Counsel would further submit that notice was sent to the correct address and the learned single Judge failed to see that old and new numbers makes no confusion since both the numbers are written in doors by the Corporation authorities and while so, the learned single Judge ought not to have accepted the explanation for his non-appearance on 25.08.2008.