SATHRASALA SARATHBABU Vs. SHANTILAL KOTHARI

JUDGEMENT

(1.) This Insolvency Petition has been filed under Sec. 9(2), 10, 11, 12, 13 of the Presidency Towns Insolvency Act, seeking adjudication of the respondent as an Insolvent on the ground of his inability to pay a decreetal debt after having served notice of insolvency on the respondent. The attempt of the respondent to have the insolvency notice in I.N.No.9 of 2009 served on him on 13/3/2009, set aside failed, since the application for setting aside the insolvency notice in A.No.140 of 2009 came to be dismissed on 20/7/2009.

(2.) The facts leading to the filing of this Insolvency Petition are as follows:-

(3.) The said petition is resisted by the respondent contending that the mere failure to pay the decreetal debt would not constitute an act of insolvency. It is also claimed that monies are kept in deposit by the Insolvent and the same could be withdrawn and paid over to the petioning creditor. It is also further claimed by the respondent that the Income Tax Department attached a sum of Rs.16,49,867.00 towards the tax payable by the Trust namely, Satrasala Venkatraman Trust. Lastly, it is contended that the special leave petitions filed by the respondent, challenging the judgment and decre in OSA.No.433 and 430 of 2018 are pending on the file of the Hon'ble Supreme Court and therefore, the petition filed under Sec. 9(2) of the Act is not maintainable. It is further contention that the insolvency proceedings cannot be used asexecution proceedings. At trial, the petioning creditor was examined as P.W.I and Exs.Pl to P6 were marked. The respondent was examined as R.W.I and Exs.Rl to R28 were marked.