*1* nmis.49.09.inot.21.08 kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.49 OF 2009 IN INSOLVENCY NOTICE NO.21 OF 2008 Jiji Marshall Trading Co.Pvt.Ltd.. ..Judgment Creditor -Versus- Darshan Jariwalla. ..Judgment Debtor. .......... Mr.Amol Doijode, for the Judgment Creditor. Mr.R.K.Malkani, for the Judgment Debtor. .......... CORAM : S.C.DHARMADHIKARI, J. DATE : 18th January, 2011. P.C. 1 This Notice of Motion is taken out by the Judgment Debtor for quashing and setting aside the Insolvency Notice dated 30.04.2008 bearing No.N/21/2008. 2 It is contended by Mr.Malkani, learned counsel appearing in support of this Notice of Motion, that the Judgment Debtor was on a short visit to Mumbai and residing temporarily on weekly basis as a paying guest with Mrs.Hemlata Tejani at 25-B, Kum Kum Apartments, S.V.Road, Near Nanavati Hospital, Vile Parle (W), Mumbai-400056. He submits that the Judgment Debtor ordinarily resides at Ahmedabad. It is submitted that the Insolvency Notice is based on a decree of the Civil Court in Ahmedabad in the State of Gujarat and unless and until the requirement of Section 39 of the Code of Civil Procedure, 1908 is satisfied, no Insolvency Notice could have been moved. The Judgment Debtor is not residing at Mumbai nor is working for gain in Mumbai, therefore, *2* nmis.49.09.inot.21.08 Insolvency Notice is bad in law and the order passed thereon should be set aside. 3 My attention is invited to the affidavit in support and particularly the contents of paragraph No.4 in support of the above pleas. 4 On the other hand, Mr.Doijode, learned counsel appearing on behalf of the Judgment Creditor, submits that Section 39 of the Code of Civil Procedure, 1908 has no application in this case. This is an order made on Insolvency Notice. The insolvency proceedings cannot be equated with the execution proceedings. The decree is passed by the Civil Court and the said decree has gained finality because an appeal filed against the said decree has been dismissed by the Gujarat High Court. In these circumstances and when there is enough proof on record to show that the Judgment Debtor resides at Mumbai and is Chartered Accountant by profession, so also, acting in films and T.V. serials in Mumbai, then, no reliance can be placed on the statements made in the affidavit in support. Mr.Doijode invited my attention to the reply and annexures thereto and contended that there is inordinate delay in moving this application and even on that ground, it should be dismissed. 5 A rejoinder affidavit is filed by the Judgment Debtor in which he states that he is residing in Mumbai. It is stated that the Judgment Debtor has separated from his wife Apara Mehta from 10.08.2003. Thereafter, he has never resided at Om Sainath Co-operative Housing Society Ltd., Building No.5, 1st Floor, Santacruz (W), Mumbai-400055 and it is his wife and daughter who are residing there. In these circumstances and when the Judgment Debtor is a trading member of the National Stock Exchange of India and in the certificate of registration, the address is shown of Ahmedabad, then, all the more this Notice of Motion should be made absolute. *3* nmis.49.09.inot.21.08 6 With the assistance of the learned counsel appearing for the parties, I have perused the motion and all affidavits on record together with their annexures. In my view, there is no substance in this Notice of Motion. Mr.Doijode is right in relying on Section 39 of the Code of Civil Procedure, 1908 which falls in Part-II, which is titled as “Execution”. The heading of Section 38 is “Courts by which decrees may be executed”. Section 39 falls under that sub-heading and provides for “transfer of decree”. The execution proceedings are distinct in nature. The proceedings under Section 9 of the Presidency Towns Insolvency Act, 1909 cannot be equated therewith. Therefore, reliance placed by Mr.Malkani on Section 39 of the Civil Procedure Code is misplaced. 7 Even otherwise, on perusal of the record I am satisfied that the Judgment Debtor resides at Mumbai. It has been pointed out by the Judgment Creditor that the Judgment Debtor continuously resides and works for gain in Mumbai. The address that is mentioned as Santacruz (West) has been referred and further there is another address of the Judgment Debtor at Andheri (W) and the details of same are found in paragraph No.8 of the affidavit in reply. It is clear from the documents placed on record that the Judgment Debtor ordinarily resides and/or works for gain in Mumbai. Even the Insolvency Notice was served at the address at Vile-Parle (W) which is not stated to be a temporary address. Further it has been pointed out that the address which has been mentioned in the affidavit in support of the present Notice of Motion, shows that the premises stand in the name of Madhukant Mehta. The premises at Ahmedabad neither belong to the Judgment Debtor nor he resides therein. Further annexures to the affidavit in support would show that the address as mentioned therein is 306, Sundar Park-B, Andheri Link Road, Andheri (W), Mumbai-400058. Thus, the Judgment Debtor resides, *4* nmis.49.09.inot.21.08 may be, at different premises but Mumbai itself. There is nothing in the affidavit in rejoinder which falsifies the statements in the affidavit in reply. Further all requirements of Section 9(2) of the Presidency Towns Insolvency Act, 1909 are satisfied namely there is a decree of the Civil Court in favour of the Judgment Creditor against the Judgment Debtor and that the said decree is final because an appeal there from has been dismissed by the Gujarat High Court. 8 For all these reasons and finding that the Judgment Debtor has not acted bonafide, that this is not a fit case to grant any relief in this Notice of Motion. The Notice of Motion is, therefore, dismissed. However, no order as to costs. 9 At this stage, it is prayed that this order be stayed for three weeks. The order dismissed the Notice of Motion. Such an order cannot be stayed. Hence, the prayer for stay is rejected. (S.C. Dharmadhikari, J)