1 nms.71.10 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN INSOLVENCY NOTICE OF MOTION NO. 71 OF 2010 IN I.R.N.NO.16 OF 2010 IN PETITION NO. 44 OF 2003 Re.: Himanshu Anantrai Mehta .... Insolvent Ex-parte: Hetal Himanshu Mehta @ Hetal Gunwantrai Doshi .... Petitioning Creditor. The Official Assignee of Bombay. .... Petitioner. Mr. R. R. Yadav for Petitioning Creditor. Mr. V. M. Parshurami with A. B. Kadam, for Insolvent. Mr. Y. C. Parikh, Official Assignee present. CORAM: S. C. DHARMADHIKARI, J. DATED: FEBRUARY 1, 2011. P.C.: This notice of motion is moved by the insolvent stating that the petitioning creditor is his ex-wife. Their marriage has been dissolved by a decree of mutual consent by the family court under SSM 2 nms.71.10 Section 13B of the Hindu Marriage Act. In pursuance of the consent terms which have been filed and on the basis of which the marriage was dissolved, the criminal proceedings and particularly under Section 498A of the I.P.C have come to an end. It is stated that both the petitioning creditor and insolvent have subsequently remarried and happily settled. Yet, petitioning creditor continues to harass the insolvent by alleging that he has failed to pay the money under the consent decree. Once criminal proceedings have been settled and were allowed to be disposed of as withdrawn or not prosecuted, then, the present proceedings are nothing but an abuse of process of the court and merely to harass the insolvent. 2. I am unable to accept this contention for more than one reason. Under the terms on which the marriage came to be dissolved, the insolvent had agreed to pay Rs.3,00,000/- within a period of four months from 3 rd April, 2001 or in any event from the date of the order dissolving the marriage. SSM 3 nms.71.10 3. That amount has been admittedly not deposited. The application was made by way of Civil Miscellaneous Application No. 67 of 2005 to the family court for marking the consent decree as satisfied on the basis of the same settlement terms and particularly dated 24 th December, 2003 in the present insolvency petition. 4. By an order dated 10 th January, 2007, the family court has rejected this application. Therefore it is clear that there is nothing on record by which it can be stated that the petitioning creditor has waived her rights to claim to Rs.3,00,000/- as permanent/ alimony or otherwise. 5. In these circumstances, this motion is misconceived and particularly when the order of family court has gained finality. The motion is therefore dismissed. 6. At this stage, Mr. Parshurami appearing on behalf of the insolvent, after taking instructions from the insolvent, who is present in court, makes a statement that insolvent will pay to the SSM 4 nms.71.10 wife/petitioning creditor or her constituted attorney a sum of Rs.3,00,000/- within a period of 12 weeks from today. If the said sum is paid, the further proceedings in insolvency as far as the compliance by the insolvent shall remain stayed and thereafter the petitioning creditor may apply for appropriate reliefs including withdrawal of the Petition by complying with provisions of law. If there is a default, then the consequences in law shall follow. (S. C. DHARMADHIKARI, J). SSM