SIDDHARTH SRIVASTAVA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE petitioning creditor has filed this petition under S. 9 of the Presidency Towns Insolvency Act, 1909 (for short, the Act) for adjudicating the judgment debtor as insolvent on the ground that he has committed act of insolvency. The relevant facts necessary for appreciation of the prayers in the petition are in brief as under :-

(2.) THE petitioning creditor had invested a sum of Rs. 5 crores by way of equity investment with the Asia Television Network Ltd. (for short 'atn') under a memorandum of agreement dated 21-3-1996. The judgment debtor was at all material times and is the Chairman and Managing Director of the said ATN. It appears that certain disputes arose between the parties in connection with the memorandum of agreement and therefore, the petitioning creditor filed an arbitration petition No. 14/1997 under S. 9 of the Arbitration and Conciliation Act, 1997 (for short the Act, 1997' ). In that proceeding, the parties arrived at a settlement and filed consent terms dated 7-8-1997. Accordingly, the award in terms of the said consent terms came to be passed on 5-9-1997. According to the petitioners under the provisions of the Act, 1996, the Award has the force of the decree and hence a decree in terms of the said award came into existence. It may be pointed out that under the consent terms, the judgment debtor acknowledged his liability to pay to the petitioning creditor a sum of Rs. 6. 60 crores in instalments beginning from 15-9-1997. It is stated that accordingly, the 'atn' initially paid a sum of Rs. 45 lakhs towards the instalment as agreed upon in the consent terms but thereafter there were no payments forthcoming from the judgment debtor. According to the petitioning creditor under the said Award/decree, the judgment debtor was jointly and severally liable alone with the 'atn' to pay the dues. Since the judgment debtor made defaults in payment of the instalments, the petitioning creditor filed contempt petition No. 9/98 which came to be admitted on 26-2-1998. During the pendency of the said contempt petition, the petitioning creditor also filed execution application No. 58/1998 and by warrant of attachment got attached the movable properties of the judgment debtor along with the properties of the ATN. In the said contempt petition, the parties arrived at settlement and filed their consent terms dated 9-12-1998. In view of the consent terms, the contempt petition came to be disposed of in terms of the said consent terms. By the consent terms the petitioning creditor agreed to accept a reduced amount than what was stated in the earlier consent terms, provided the judgment debtor adhered to the payment schedule set out thereunder. The consent terms further provided that in case of any default by the judgment debtor, the petitioning creditor would be entitled to recover the full amount as stipulated in the consent terms.

(3.) THE petitioning creditor has alleged that in the meantime, the judgment debtor started a new channel i. e. ATN, which was in contravention of the order passed by this court. The petitioning creditor, therefore, filed a second contempt petition bearing No. 119/1998 against the judgment debtor. The said petition was admitted on 24-2-1999. The petitioning creditor has further alleged that the judgment debtor once again committed breach of the consent terms dated 9-12-1998 as he failed to make payment as per schedule. The petitioning creditor, therefore, took out notice of motion No. 1798/1999 and applied for appointment of a Court receiver in respect of the properties of the judgment debtor as well as the ATN. The said notice of motion was made absolute in terms of the prayer clauses (a) and (b) therein on 8-6-1999 and the Court Receiver, High Court, came to be appointed as the Receiver. It appears that the judgment debtor preferred an appeal against the said order. However, the division bench, dismissed the same on 14-9-1999 but substituted the official liquidator in place of the Court receiver. Subsequently, the Court receiver was reinstated by order dated 12-10-2000. In the meantime, pursuant to the consent terms dated 7-8-1997 and 9-12-1998, the Escrow Agent of the judgment debtor handed over to the petitioning creditor his library of 100 films belonging to the judgment debtor. The petitioning creditor gave a credit of Rs. One Crore to the judgment debtor towards the value of the said library.