1 nmis59.10.doc ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY INSOLVENCY JURISDICTION NOTICE OF MOTION NO.59 OF 2010 IN INSOLVENCY PETITION NO. 31 OF 2002 Re: Rajesh Dhirajlal Vora. .. Judgment Debtor. Ex-parte: Aarti Mehra, Prop. M/s. Orient International. .. Petitioning Creditor. Neelam Suresh Manek & anr. .. Respondents. Mr. Cyrus Ardheshir a/w. Pallavi Kularni i/b. Bilawala & Co. for Petitioning Creditor. Mr. Ganesh Gole, advocate for insolvent. Mr. Rahul Mestry with Mr. S.A.Tawate & G.V.Mhatre for applicant in NM 59 of 2010. Mr. Y.C.Parikh, O.A. present. CORAM: S.C.DHARMADHIKARI, J. DATED: MARCH 1, 2011 P.C. 1 Heard Counsel for the parties. 2 This Notice of Motion is moved by the applicant for joining him as Respondent in the Insolvency Petition. Counsel for 2 nmis59.10.doc the applicant submits that the applicant be allowed to withdraw this Notice of Motion with liberty to adopt appropriate proceedings. 3 At this stage, my attention is invited by Mr. Ardheshir, Counsel appearing for the Petitioning Creditor to the Order passed by this Court on 19th October, 2010, wherein the Gala no.15 has been in possession of the applicant as agent of the Official Assignee. Mr. Ardheshir submits that on the withdrawal of the Notice of Motion, the directions issued also must come to an end and the Official Assignee should take possession of this Unit. 4 At this stage, the applicant’s advocate submits that some time may be given to the applicant to adopt appropriate proceedings and apply for interim orders therein, so that the protection given by this Court can be continued or the applicant can also seek a relief to protect his possession, otherwise. 3 In such circumstances, while allowing withdrawal of the Motion, with liberty to adopt appropriate proceedings, it is directed that the direction No.(v), contained in the order dated 19th October, 2010 passed on this Notice of Motion shall continue for a period of six weeks, after which period, it shall come to an end automatically 3 nmis59.10.doc and without any further reference to the court. If within this period, if the applicant adopts appropriate proceedings and obtains such orders, interim or otherwise, the parties will abide by the same or else this order will come into effect enabling the Official Assignee to take possession of the unit with such force, as may be required, including police assistance. 4 The Official Assignee will refund Rs. 25,000/- to the applicant within a period of four weeks fro today. 5 At this stage, my attention is invited to the fact that the insolvent has not abided by the order dated 1st February, 2011. He has only deposited sum of Rs.49,776.18 but has failed to abide by the other directions namely, deposit of Rs.5,50,000/-. Therefore, this Court can pass order of arrest of this Judgment Debtor/Insolvent. Mr. Gole, Counsel appearing on behalf of the Judgment Debtor/Insolvent submits that the sum of Rs. 2 Lakhs will be deposited by the insolvent immediately with the Official Liquidator and for the balance sum of Rs. 3,50,000/-, the applicant may be given 8 weeks’ time. This request is opposed by the Petitioning Creditor’s Counsel. 4 nmis59.10.doc 6 Firstly, it is clarified that the withdrawal of the Notice of Motion No.59 of 2010 or disposal of the other Motion will in no manner affect the Court’s power to proceed against the insolvent for having committed willful breach or violation of Court’s order and initiating such proceedings, as are permissible in law including under Contempt of Courts Act, 1971. Therefore, the first apprehension expressed by the Petitioning Creditor that the disposal of the proceedings would technically mean that the orders passed, directions issued need not be complied with has no basis and foundation in law. However, before any further direction is issued under Contempt of Courts Act, 1971, one last opportunity is given to the Judgment Debtor to deposit Rs.5,50,000/-, which he shall do within a period of four weeks from today. The Judgment Debtor, who has brought in Rs.2,00,000/- in the form of Demand Draft drawn in favour of the Official Assignee shall be at liberty to present the said Demand Draft to the Official Assignee on or before 4th March 2011(Friday) and if it is so presented, the Official Assignee to accept it without prejudice to the rights and contentions of the Petitioning Creditor. Time to pay balance amount of Rs.3,50,000/- is extended on condition that the Judgment Debtor shall pay costs quantified at Rs. 5,000/- and interest @ 6% on Rs.5,50,000/- from 19th October, 2008. Only on deposit of such amount, the Official Assignee will accept the 5 nmis59.10.doc balance sum of Rs. 3,50,000/-. 7 Needless to clarify that once the Notice of Motion is withdrawn by the applicant, there is no question of this court adjudicating on merits of the controversy and therefore, all contentions and pleas of both the sides are kept open and the aforementioned directions are without prejudice to the same. (S.C.DHARMADHIKARI, J.)