1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi NOTICE OF MOTION NO.39 OF 2009 IN NOTICE NO.N / 9 OF 2009. Madhur Ranganath Somani. ..Judgment Debtor. Ex-parte :- Suryakant Keluskar. ..Judgment Creditor. .... Mr. R.D. Bhat, for Judgment Creditor. Mr. Rajendra R. Mishar, for Judgment Debtor. .... CORAM : S.J.KATHAWALLA, J. DATE : 1 ST SEPTEMBER 2009. P.C. This notice of motion is taken out by the applicant judgment debtor for setting aside the insolvency notice bearing no. N/9 of 2009 dated 25 th February 2009 taken out by the judgment creditor and served upon the judgment debtor on 9 th April 2009. 2. The insolvency notice admittedly is based on the consent decree/ terms obtained by M/s. Fraser Turner and Company by the judgment debtor. It is alleged in the said notice that the judgment debtor was a Director of M/s. Fraser Turner and Company. 3. The judgment debtor has submitted that M/s. Fraser 2 Turner and Company is a proprietary concern of Shree Shreeniwas Investment and Finance Company, which was wound up by an order of this Court dated 16 th December 2005 of which the judgment debtor was a Director. It is submitted that it is wrongly mentioned in the insolvency notice that the judgment debtor was the Director of M/s. Fraser Turner and Company which was not a company incorporated under the provisions of Companies Act, 1956. It is submitted that after passing of the winding up order dated 16 th December 2005, the assets of Shree Shreeniwas Investment and Finance Company including M/s. Fraser Turner and Company has been taken charge of by the Official Liquidator and that the petitioning creditor should approach the Office of the Official Liquidator for getting their claim adjudicated and/or for receiving any payments under the said terms. It is submitted that by no stretch of imagination, the Director of Shree Shreeniwas Investment and Finance Company can be treated as the debtor of the petitioning creditor, he being only the Director of the said Shree Shreeniwas Investment and Finance Company at the relevant time which owned M/s. Fraser Turner and Company. 3 4. The submissions made on behalf of judgment debtor in my view are correct. The learned Advocate appearing for the petitioning creditor has in response to the said objections raised on behalf of debtor submitted that at no point of time, the petitioning creditors were aware that M/s. Fraser Turner and Company was a proprietary concern of Shree Shreeniwas Investment and Finance Company. 5. The fact of M/s. Fraser Turner and Company being a proprietary concern of Shree Shreeniwas Investment and Finance Company, is recorded by this Court in the winding up order dated 16 th December 2005 itself. If the petitioning creditor contends/ alleges that the petitioning creditors are the victims of any alleged misrepresentation or fraud, they will have to take out appropriate proceedings on the basis of the alleged cause of action. In any event, the insolvency notice needs to be set aside. Notice of motion is, therefore, made absolute in terms of prayer clause (a) with no order as to costs. [ S.J.KATHAWALLA, J. ]