(1.) This Notice of Motion is taken out under Section 34 of the Presidency Towns Insolvency Act, 1909 by the Petitioning Creditor against the Insolvent Shri Rajesh Dhirajlal Vora interalia for the following reliefs:
(2.) Shri Rajesh Vora (the Insolvent) is about 50 years old and a resident of Flat No.151/B admeasuring 3000 sq.ft. on the 15th Floor of a building known as Maker Tower 'B' situated at Cuffe Parade, Mumbai (the said flat). His mother and father were also adjudged Insolvents. His father recently expired. The Petitioning Creditor had filed Summary Suit No.533 of 1998 against the Insolvent for a decree for recovery of a sum of Rs.17,75,685/- with further interest of Rs.15,00,000/- @ 18% p.a. By an Order dated 31st March 2000 passed by this Court, the Suit was decreed against the Insolvent. The Insolvent preferred an appeal and the Hon'ble Appeal Court by its Order dated 31st July 2000 granted time to the Insolvent to pay the decretal amount in installments. The insolvent defaulted in making the payment, in view of which the Petitioning Creditor got an insolvency notice issued against the Insolvent. The Insolvent took out a Notice of Motion for setting aside the said insolvency notice which was dismissed on 4th September 2001. The Insolvent preferred an appeal from the said Order of dismissal. By an Order dated 25th September 2001, the Hon'ble Appeal Court accepted the undertaking of the Insolvent to pay to the Petitioning Creditor the decretal amount as per the minutes of order tendered in Court by the parties. However, the Insolvent failed to make payment as undertaken in the minutes of order, due to which by an Order dated 5th August 2003, the Insolvent was adjudged Insolvent. The Insolvent filed his Schedule of Assets before the Official Assignee on 16th April 2005, according to which, he is indebted to various creditors aggregating to a sum of Rs.7,18,56,855.69. According to the Petitioning Creditor, however, the debts of the Insolvent far exceed the sum of Rs.7,18,56,855.69.
(3.) Though the Rule Nisi was made absolute on 4th December 2006, the Office of the Official Assignee/Insolvency Registrar got a warrant of arrest issued only on 2nd December 2009. Even thereafter, the Office of the Sheriff of Bombay and the Police at the Cuffe Parade Police Station were unable to arrest the Insolvent. This Court therefore, by its Order dated 5th May 2010, directed an officer from the office of Dy. Sheriff as well a responsible officer from the Cuffe Parade Police Station to remain present before this Court on 6th May 2010.