1 mgj IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Insolvency Petition No.11 of 2009 M/s Thakkar Money Multipliers Pvt.Ltd. ..Petitioning creditors Vs. M/s JAG Amba Syndicate & ors. ..Debtors. Mr.Rohan Cama with Dr.(Mrs.) R.R.Ajinkya for petitioning creditors Mr.I.G.Madnani for Debtors. CORAM: S.J.KATHAWALLA J. 17th September 2009 P.C. 1 This petition is filed by the petitioning creditors seeking an order of adjudication against the Debtors. It is the case of the Petitioning Creditors that the Debtors are justly and truly indebted to the Petitioning Creditors in the sum of Rs. 43,04,909.05 with further interest on Rs. 23,50,000/- at the rate of 12% p.a. from 29th January, 2009 till payment and/or realisation 2 under the decree dated 7th November, 2006 obtained by the Petitioning Creditors against the debtors in Summary Suit no.1250 of 2006. Particulars of claim of Rs.43,09,909.05 is annexed and marked as Exhibit A to the petition. 2 The Petitioning Creditors served Insolvency Notice No. N/18 of 2008 dated 14th March, 2008 upon the Debtors on 24th April, 2008 by personal service. The Debtors thereafter took out Notice of Motion No.38 of 2008 to set aside the Insolvency Notice under Rule 58(C) of the Bombay Insolvency Rules, 1910. The said Notice of Motion was heard by this Court (Coram: A.M.Khanwilkar J.) and on 11th December, 2008 this Court after dealing with all the contentions of the Debtors including their contention that they have already paid an amount of Rs.5,00,000/- to the Petitioning Creditors, came to a finding that the debtors are not in a position to 3 make out any good ground for interference and the motion deserves to be dismissed. However, since the debtors gave a proposal to repay the outstanding dues of the petitioning creditors in equal instalments of Rs. 2,00,000/- per month this Court after hearing the petitioning creditors gave an opportunity to the debtors by passing the following order. i) The judgment Debtors shall pay a sum of Rs.5 lakhs per month to the Judgment creditors on or before 10th of every English calender month. First instalment will commence from January 2009. Judgment Debtors would be liable to pay the amount along with interest at the rate of 12% per annum till the entire amount is repaid. ii) It is made clear that in case of even one default reported to the Registry of this Court, the Registry will proceed on the assumption that the Motion has been 4 dismissed in terms of this order without further reference to the Court. However, if the Judgment Debtors regularly pay the monthly instalment as aforesaid and or pay the entire amount in earlier point of time and report that position, the Motion will stand allowed in terms of prayer clauses (a) and(b) 3 Admittedly the debtors committed an act of insolvency on 10th January 2009 by committing default in payment of the first installment ordered by this Court. Thereupon the petitioning creditors filed the present petition. Since the debtors avoided service of the petition, the petitioning creditors obtained an order dated 16th June 2009 from this Court for service by publication. It is only after the notice was published that the debtors came forward and accepted service on 10th June, 2009. 4 No reply was filed to the petition 5 by the debtors even on 21st July 2009 when the petition reached hearing. The learned Advocate appearing for the debtor informed this Court on 21st July 2009 that the debtors have filed an appeal from the order of this Court dated 11th December, 2008 and that this petition should not be heard until the said appeal is heard/disposed of. From a copy of the Appeal tendered in Court it appeared that the appeal is filed on 19th January 2009. However, admittedly, the debtors in the last seven months had not bothered to remove the office objections and get the appeal numbered. The petitioning creditors were also not informed about the said appeal filed by the debtors. 5 This Court, therefore, by its order dated 21st July 2009 recorded some of the aforesaid facts and also recorded that from the said facts the intention of the debtors to delay the hearing of the petition stands 6 completely exposed. It was further recorded that the debtors cannot be granted any time on the ground that the appeal filed by the debtors is pending. However, since the learned Advocate appearing for the debtors informed the Court that he was engaged only two days back and had filed his vakalatnama on the earlier day and is unable to proceed with the matter, this Court by its order dated 21st July 2009 adjourned the hearing of the petition to 4th August, 2009. By the said order it was clarified that on the adjourned date the debtors shall not be granted time on any ground whatsoever and this Court will proceed with the hearing even in the absence of the debtors and/or their Advocates. 6 Thereafter this matter appeared before this Court on 15th September, 2009 when once again the Advocate appearing for the Debtors was not ready to go on with the matter. This Court, therefore, once again 7 gave a last chance to the Debtors to proceed with the petition on 17th September, 2009. 7 Today, the learned Advocate appearing for the Debtors is once again reiterating the submissions which were already dealt with and disposed of by this Court by its order dated 11th December, 2008 and submits that an appeal is filed by the debtors against the said order. In response to a query from the Court whether the office objections raised in the Appeal filed in January 2009 have been removed and the Appeal numbered, the learned Advocate for the debtors has answered in the negative. 8 It is, therefore, established beyond any doubt that the debtors have no defence whatsoever against the claim of the petitioning creditor and the act of insolvency has been committed by the debtors as contended by the petitioning creditor. In fact the debtors as recorded in the order of 8 this Court dated 11th December, 2008 had agreed to pay Rs.2,00,000/- (Rupees two lacs) per month to the petitioning creditor until their claim is paid off. The appeal has been filed by the debtors with the intention of not pursuing the same but is filed only with a view to seek adjournments from this Court in the present petition on the ground that an appeal is pending. In my view, the debtors have no defence whatsoever to this petition and their conduct as set out aforesaid is absolutely dishonest. 9 In view thereof the petition is made absolute in terms of prayer clause (a). (S.J.KATHAWALLA J.)