pvr 1 a212-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.212 OF 2011 IN NOTICE OF MOTION NO.37 OF 2009 IN PETITION NO.55 OF 2006 1.Vijaykumar Jayanti Prasad & Ors. ...Appellants vs. 1.SICOM Ltd.& Anr. ...Respondents --- Mr.J.P.Sen i/b. Ms.Kavita A.Shah,for Appellants. Mr.Kevic Setalwad i/b. Prakash Punjabi & Co., for Respondents. --- CORAM: D.K.DESHMUKH & R.G.KETKAR, JJ. DATED: 11th July,2011. P.C.:- 1. Admittedly, there is a money decree passed by this Court in Summary Suit no.2980 of 1997. Admittedly, an insolvency notice was issued on the basis of that decree on 28.2.2006 which was duly served on the appellants. pvr 2 a212-11 Admittedly, the appellants did not take out any notice of motion for setting aside the insolvency notice taken out by the decreeholder-respondent. Therefore, in terms of the provisions of sub- section (2) of Section 9 of the Presidency of Towns Insolvency Act, the appellants are deemed to have committed an act of insolvency on the expiry of the period specified in the insolvency notice for its compliance. Thus, as the presumption arose that the appellants are deemed to have committed an act of insolvency, petition no.55 of 2006 was taken out by the decree holder- SICOM Ltd. for adjudication of the appellants as insolvent. In that petition, admittedly, the appellants were duly served but they did not appear. By order dated 3.10.2006 the appellants were adjudged as insolvent. Notice of Motion no. 37 of 2009 was taken out by the appellants for setting aside order dated 3.10.2006. Several grounds appear to have been urged before the learned Single Judge in support of that notice of pvr 3 a212-11 motion. However, before me the only ground that was urged was  by notification dated 23.2.2004 SICOM Ltd. has been declared as Public Financial Institution, and therefore, the decree passed by this Court in favour of SICOM Ltd. is executable only by Debt Recovery Tribunal and not by this Court, and therefore, unless and until a certificate is issued, the decree cannot be executed by the Debt Recovery Tribunal. In the submission of the appellants, therefore, execution of the decree passed by this Court against the appellants is deemed to have been stayed, and therefore, insolvency notice could not have been issued on the basis of that decree. The insolvency notice was issued on 3.3.2006. ON that date the notification on which reliance is placed by the appellants was already issued, therefore, it was open to the appellants to move the notice of motion as contemplated by sub- Section (5) of Section 9 of the Presidency Towns Insolvency Act for setting aside the insolvency pvr 4 a212-11 notice. The appellants admittedly did not do so. Therefore, a statutory presumption arose that he has committed an act of insolvency. Thereafter, petition no.55 of 2006 was taken out for adjudging the appellants as insolvent on the basis of the statutory presumption referred to above. That petition was duly served. It was possible for the appellants to appear in that petition and contest that petition on this ground, but the petitioner has chosen not to appear and contest. In my opinion, therefore, the learned Single Judge has rightly held that now at this late stage the appellants cannot be permitted to raise the ground which he had not raised though he had an opportunity to raise that ground twice viz. Once when he was served that insolvency notice and secondly when he was served with petition, no.55 of 2006. 2. In our opinion, therefore, the appeal has no substance. What is pertinent to be noted here pvr 5 a212-11 is that SICOM Ltd. has been declared as Public Financial Institution to enable the SICOM Ltd. to recover its debts speedily, because, it is public money which is advanced by SICOM Ltd. In our opinion, that notification cannot be permitted to be used by the appellants to stall the recovery of public money which admittedly the petitioner has taken from SICOM Ltd. and refuses to pay. Thus, taking overall view of the matter, therefore, the appeal cannot be entertained. It is rejected. (D.K.DESHMUKH, J.) (R.G.KETKAR, J.) ---