RIKHIRAM GUPTA Vs. STATE

JUDGEMENT

(1.) ON 10th January 1983 the creditor filed a suit being Suit No. 7 of 1983 against M/s. Patel Ramnicklal Haribhai and Co. and one M/s. Kamal Roadways which is a registered partnership firm. The debtors No. 1to 4 are partners of the said firm being debtor no. 5. On 18th July 1983 a decree in favour of the creditor and, inter alia, against the said debtor no. 5 was passed for a sum of Rs. 83,262. 50p. with interest thereon at the rate of 9% per annum from 2nd February 1980 until realisation and cost. On 2nd April 1985 the creditor filed a tabular statement supported by an affidavit of Sri Kishor Kumar Thakkar affirmed on 2nd April 1985. On 3rd April 1985 an order was passed by C. K. Banerji, J. inter a1ia for attachment of moveable properties and the Bank account CE mentioned in column 10 of said tabular statement. Pursuant to the said order on 24th April 1983. the goods belonging to the said debtor no. 5 as referred to in the report dated 24th April 1985 were seized and attachment levied. Attachment has also been levied On a sum of Rs. 96. 05 only lying to the credit of the debtor no. 5 in its current account with Syndicate Bank Burrabazar Branch, Calcutta. The aforesaid attachments arc still continuing. On lila April 1965 the creditor made an application for appointment of Receiver Over the attached moveables and for sale thereof. On about 14th May 1985 C. K. Banerjee, J. passed an order of sale en the said application. An application was made by M/s, Gaubati Indore Roadways arid M/s. Motiram Singhal and Company, inter alia, for adjudication upon the objection: raised by the said applicants to the said attachment. C. K. Banerji, J. refused to entertain the said application and by an order passed on 21st June 1985 rejected and dismissod the same with costs. The said M/s. Gauhati Indore Roadways and M/s. Motiram Singhal and Co. preferred an appeal against the said order. n the said appeal no prayer for stay of execution was made nor any stay has been granted of execution of the decree. The said appeal is still pending.

(2.) IN view of the aforesaid attachment being continued for more than 21 days and view of other alleged acts of insolvency having been committed creditor issued and served a Notice of Demand dated 30th July 1985 under Presidency towns Insolvency Act specifying therein the amount due under the said decree being a sum or Rs. 1,61,330. 00 and requiring the debtors to comply with the said notice by making payment of the said sum or by furnishing security for the same to the satisfaction of the creditor. The creditor also specified therein for compliance of the notice a period of thirty three days after its service and stated the consequences of noncompliance.

(3.) HOWEVER, the debtor nos. 1 to 3 made an application under section 9 (5) of the Presidency Towns Insolvency Act, 1909 in this Court, inter alia for setting aside the said Insolvency notice.