KEWAL P KASHYAP Vs. J H JAGTIANI

JUDGEMENT

(1.) I propose not to follow a judgment of a learned single Judge of this Court, not because I disagree with what it lays down -- which, with respect, I do --but because it does not follow at least one earlier judgment of this Court, which as I read it, is a binding precedent.

(2.) The petition is presented for an order of adjudication against the debtor pursuant to non-compliance with an insolvency notice. The act of insolvency was committed on 15th September 1976. When the petition reached hearing before my brother Kania J., Mr. Jain, learned Counsel for the petitioner, stated that consent terms had been arrived at between the petitioner and the debtor and he applied for leave to withdraw the petition. Mr. Jain stated that the consent terms had been arrived at without any pressure or coercion, being exercised upon the debtor Miss Michhani learned Counsel for another creditor, Govind Bajaj, thereupon applied for leave to be substituted in place of the Petitioner Mr. Jain and Mr. Wadhwa, learned Advocate for the debtor, relied upon an unreported judgment of Mridnl J. D/- 7-12-1976 in the case of Fulchand Chokhmal v. Sirajuddia Yusuf Surma-walla (in Insolvency Petn. No. 102 of 1975) (Bom) and contended that where a settlement had been arrived at between a petitioner and a debtor, the petitioner was entitled to leave to withdraw his petition and no order of substitution could be made, Kania J. after considering the arguments and the authorities cited, felt some hesitation in following the judgment of Mridul J. for the reasons which he briefly set out in his order and concluded that the matter could more advantageously be decided by a larger bench. The matter comes back to be decided by me pursuant to administrative directions.

(3.) Under the consent terms dated 3rd August 1977 the debtor has agreed to pay to the petitioner on or before 15th July 1978 the sum of Rs. 22,500/- and interest at the rate of 6 p. c p. a. and has agreed not to release exhibit, distribute or exploit a motion picture being produced and directed by him till the said sum of Rs. 22,500/- and interest has been paid in full.