SHANTHILAL KOTHARI Vs. SATHRASALA SHARATH BABU

JUDGEMENT

(1.) THIS is an application filed by the respondent debtor, seeking to set aside the notice of insolvency dated 19.2.2009 in I.B.No. 9 of 2009, dated 2.3.2009.

(2.) THE Notice of Insolvency in I.N.No,9 of 2009 is filed by the respondent/petitioning creditor to the applicant debtor in terms of Section 9(2) of the Presidency Towns Insolvency Act, 1909 and Order III (A) of the Insolvency Rules. It was stated by them that a suit was filed in CC No. 770 of 1997 and the suit was decreed, by an order, dated 6.7.2006. As against the said order, the applicant filed appeals in OSA Nos.236 to 238 of 2006. A Division Bench of this Court by its judgment, dated 2.9.2008, dismissed the appeals. A further appeal to the Supreme Court in Special Leave to Appeal (Civil) Nos 25807 to 25810 of 2008 was also dismissed by the Supreme Court on 7.11.2008. It was in these circumstances, the petitioning creditor assessed the value of the decreetal amount as Rs.39,46,692.91 and since no security is available for the said sum and that the decree had not been satisfied, the notice of insolvency was sought to be served on the respondent/debtor.

(3.) FURTHER, reliance was also placed upon the judgment of the Supreme Court in Sarat Chandra Roy v. Harak Chand Damani and Another AIR 1972 SC 2127 : (1973) 3 SCC 187 and reference was made to the following passage found in paragraph 1, which is as follows:-1. -. Non-payment of a decree promptly by itself is no ground to adjudicating a person insolvent. Appellant appears to be a person of substantial means, in this case insolvency proceedings appear to have been initiated as an alternative to execution proceedings.-