HARSHAD RATILAL SHAH Vs. ISHARDAS SUDARSHANLAL

JUDGEMENT

(1.) This is an appeal against a judgment of Parekh, J. dated April 9, 1985 passing an order of adjudication on the aforesaid insolvency petition No. 12 of 1984. The appellant before us is the judgment -debtor against whom the order of adjudication was passed. The respondent firm is the petitioning creditor. Only a few facts require to be stated for the purpose of the disposal of this appeal because the only question argued before us is whether the learned trial Judge had jurisdiction to entertain the aforesaid petition.

(2.) THE petitioning creditor filed a suit against the debtor in this Court being summary suit No. 1165 of 1980. An ex pane decree was passed in the said suit. The judgment -debtor appealed against; the said decree and, in the appeal, obtained an order for the payment of decretal amount by instalments. The judgment -debtor failed to pay any instalment and the entire decretal amount became due and payable, The petitioning creditor thereafter took out an insolvency notice dated November 23, 1981. Attempts to serve this notice personally were unsuccessful and it was finally served by substituted service. The act of insolvency took place on November 22, 1983 by reason of non -compliance with the notice for a period of 35 days. The appellant judgment -debtor inter alia contended that the appellant had not within a year prior to the filing of the petition either resided or carried on business within the ordinary original civil jurisdiction of this Court nor had he a dwelling house situated within the jurisdiction of this Court during that period. The rest of the contentions taken up by the appellant -judgment -debtor need not detain us.

(3.) ON the basis of this evidence the learned trial Judge came to the conclusion that during one year prior to the filing of the insolvency petition on February 21, 1984, the judgment -debtor maintained a dwelling house in Bombay within the jurisdiction of this Court and had also carried on business within the jurisdiction of this Court. It is the correctness of these conclusions which is sought to be challenged by Miss Seth on behalf of the appellant.