A SREE NIVASAN Vs. RAMESH DOSHI

JUDGEMENT

(1.) The petitioner being creditor made this insolvency petition on the two grounds and one added ground namely :(a) The debtors have transferred a substantial part of their properties from their said place of business at 25, Strand Road, Calcutta as well as from the dwelling house of debtor No. 2, at Flat No. 68, Arihant Garden 81, Southern Avenue, Calcutta with intent to defeat or delay their creditors.(b) The debtors No. 2 since 2nd week of August, 1996 has secluded himself from his said usual place of business and dwelling house with a view to deprive the petitioner and his creditors of the means of communicating with him.(c)

(2.) . The respondents being debtors filed their written objection mainly taking two fold defences. Firstly, the ground as taken by the creditor petitioner is not enough for the purpose of declaration of a person having reputation in the society as insolvent and secondly the petitioner/creditor is a regular money lender doing money lending business and for non-payment of such sum cannot be treated as an act of insolvency.

(3.) Mr. S. P. Sarkar, learned Counsel appearing for the debtors contended that in order to get an order of adjudication applicability of Section 10 of the Presidency Towns Insolvency Act is obvious but such application should be sparingly made. Just becausea person is debtor one cannot said to be insolvent. Act of insolvency and winding up of a company cannot be placed similarly. Section 9 of the Act prescribes which cases will be considered as act of Insolvency. Conditions of Section 9 of the Act is not fulfilled. Therefore, the creditor/petitioner is not entitled for any relief under this petition. Moreover a creditor/petitioner shall not be entitled to present an insolvency petition against debtors unless he fulfil all the conditions laid down under Section 12 of the Act at a time.