IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 9TH NOVEMBER 2009 / 18TH KARTHIKA 1931 WP(C).No. 31940 of 2009(O) -------------------------- OPIP.2/2009 of PRL.SUB COURT,TRIVANDRUM .................... PETITIONER(S): --------------- 1. SABARINATH S/O. RAJAN AGED 21 YEARS, RESIDING AT SABARI NIVAS, ATHIYANOOR VILLAGE KODANGAVILA NEYATTINKARA TALUK, THIRUVANANTHAPURAM. 2. RAJAN S/O. VELAPPAN AGED 51 YEARS, RESIDING AT SABARI NIVAS, ATHIYANOOR VILLAGE, KODANGAVILA, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM. BY ADV. SRI.SAJEEV.T.P. SRI.R.V.SUJIT KUMAR RESPONDENT(S): --------------- 1. A.P.AJAYAN, OFFICIAL RECEIVER, DISTRICT COURT, THIRUVANANTHAPURAM. 2. SAM DANIEL, S/O. T.K.KANIEL AGED 53 YEARS, RESIDING AT PAITEIL TUTHEN VEEDU 1ST MILE K.P.ROAD, KAYAMKULAM, ALAPUZHA DISTRICT. 3. MARYKUTTY JACOB W/O. P.JACOB, AGED 71 YEARS, RESIDING AT SHEELALAYAM, NEAR L.S.NOORANDU.P.O. MAVELIKKARA TALUK, ALAPPUZHA DISTRICT. 4. P.JACOB, S/O. CHANDY AGED 77 YEARS, RESIDING AT SHEELALAYAM, NEAR L.S.NOORANDU.P.O. MAVELIKKARA TALUK, ALAPUZHA DISTRICT. 5. ALICE ALEX D/O. P.JACOB AGEDC 37 YEARS, RESIDING AT SHEELALAYAM, NEAR L.S. NOORANDU.P.O MAVELIKKARA TALUK, ALAPUZHA DISTIRCT. WPC.31940/09 6. ARUNKUMAR.A S/O. T.A.AYAPPAN, AGED 28 YEARS, RESIDING AT ARUNODAYAM, AISHWARYA GARDENS (34-A) VAZHAYILA PEROORKADA.P.O. THIRUVANANTHAPURAM-5. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.31940 OF 2009 (O) ----------------------------------- Dated this the 9th day of November, 2009 J U D G M E N T Petitioners are respondents 4 and 5 in O.P.(IP).No.2 of 2008 on the file of the Sub Court, Thiruvananthapuram. The above insolvency proceedings had been initiated against the petitioner and some others to adjudge them as insolvents. Petitioners have resisted the application by challenging its maintainability, and without considering that question, the court below has ordered for bringing to sale some of the movable items belonging to the petitioners, is the grievance espoused in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the learned counsel for the petitioners. Petitioners have disputed the act of insolvency imputed against them in the petition, which according to the counsel, WPC.31940/09 2 has to be considered as a preliminary issue as it touches on the maintainability of the entire insolvency proceedings. Petitioners have also filed an application for considering the maintainability of the petition by filing a separate petition and without considering that petition, the court below has taken steps for bringing to sale the movable items attached in the proceedings, according to the counsel. The issue whether the challenge of maintainability raised by the petitioners can be decided with or without taking evidence is a matter to be considered by the court dealing with the insolvency proceedings. Normally, an imputation is made as to act of insolvency raised against the person who is sought to be adjudged as an insolvent can be decided in an insolvency proceedings only after evidence is collected. A challenge by the person so proceeded that the act of insolvency is disputed, and so much so, the maintainability of the petition has to be decided before proceeding with further steps in the proceedings cannot be accepted on its face value. Petitioners can invite the attention of the Insolvency court on his Ext.P2 application. If oral submissions are not sufficient, they can WPC.31940/09 3 move an application for that purpose. Without doing so, they have rushed before this Court with the present writ petition, I find in the given facts of the case, visitorial jurisdiction of this Court cannot be invoked by the petitioners for the relief sought for. Writ petition lacks merit, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp