1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN ITS INSOLVENCY JURISDICTION NOTICE OF MOTION NO. 46 OF 2009 IN INSOLVENCY PETITION NO. 46 OF 2002 B.D. Agawal & Another .. Insolvents Ex-parte: Mr. Ghisalal C. Shah .. Petitioning Creditor Mr. K.P. Jain i/b R.C. Jain for petitioning creditor Mr. Y.C. Parikh, official Assignee present Mr. S.A. Tawale for insolvent no. 1 CORAM : DR. D.Y. CHANDRACHUD, J. DATE : 1st DECEMBER, 2009 P.C.: 1. The learned counsel appearing on behalf of insolvent no. 1 seeks leave to carry out a formal amendment to prayer clause (a) of the notice of Motion. By prayer clause (a), the insolvent has sought annulment of the order of adjudication under Section 21(2) of the Presidency – Towns Insolvency Act, 1909. However, the order of which annulment is sought is wrongly referred to as the order dated 24th July, 2001 whereas it should be correctly read as the RMA 7nmis46-09.sxw 2 order dated 3rd June, 2003. Leave is granted to carry out the amendment on the oral request made to the court. The amendment shall be carried out forthwith. 2. On 24th July, 2001, an exparte decree was passed in Summary Suit No. 2696 of 2000. The first defendant to the suit was a partnership firm by the name of Kota Stone Industries. The order of adjudication of insolvency was passed on 3rd June, 2003. 3. The submission of learned counsel appearing on behalf of insolvent no. 1 is that insolvent no. 1 was not impleaded as a party to the suit; hence the exparte decree dated 24th July, 2001 could not bind the aforesaid insolvent. Consequently, it was submitted that the order of adjudication which is founded upon non-compliance of the exparte decree dated 24th July, 2001 should be annulled. 4. There is absolutely no merit in the submission. The first defendant to the suit, as already noted, was a partnership firm. Admittedly, Insolvent no. 1 was a partner of the partnership firm at all material times. Insolvent no. 1 took out a notice of Motion (NM 605 of 2003) for setting aside the decree dated 24th July, 2001 As an applicant to the notice of Motion, Insolvent no. 1 described himself RMA 7nmis46-09.sxw 3 as a partner of the partnership firm. On 7th April, 2003, a learned single Judge of this court recorded that counsel appearing on behalf of the insolvent sought leave to withdraw the Notice of Motion unconditionally. Leave was granted and the Notice of Motion was dismissed as withdrawn. It may also be noted that insolvent no. 1 had taken out a Notice of Motion (NM 54 of 2006) for annulment of the order of adjudication on the ground of full payment being made to the creditors. The notice of Motion was dismissed on 3rd October, 2006. The Court held that the Motion was a clear abuse of the process of Court and that insolvent no. 1 had also committed a breach of an undertaking furnished to the court. 5. Rule 1 of Order XXX of Civil Procedure Code, 1908 provides that any two or more persons claiming or being liable as partners may sue or be sued in the name of the firm of which such persons were partners at the time of accrual of the cause of action. The suit against the partnership firm was therefore, competent. As noted earlier, Insolvent no. 1 took out a Notice of Motion for setting aside the exparte decree and then proceeded to unconditionally withdraw RMA 7nmis46-09.sxw 4 the Notice of Motion. Counsel appearing on his behalf urges that the Motion was withdrawn since the decree holder had opposed the Motion on affidavit by contending that insolvent no. 1 was not a party defendant to the suit. That begs the question. Admittedly, Insolvent no. 1 took out a Notice of Motion for setting aside the exparte decree by which he was bound as a partner of the partnership firm which was impleaded as a defendant to the suit. Having chosen that remedy and having unconditionally withdrawn the Notice of Motion, Insolvent no.1 cannot be heard to urge to the contrary. An attempt was then made to show that the decree in the suit would not bind insolvent no. 1 by virtue of the provisions of Order XXI, Rule 50. It may be noted that in the reply dated 3rd April, 2003 filed to the Notice of Motion, the decree holder had averred in paragraph 12 that the packet containing the writ of summons had been forwarded to Insolvent no. 1 and the postal acknowledgment had been received in respect of the postal packet which was forwarded to Insolvent no. 1 . This statement was not controverted. The insolvent as a partner of the partnership firm is bound by the decree that was passed by this court on 24th July, RMA 7nmis46-09.sxw 5 2001. 6. Hence, no case is made out for annulling the order of adjudication. 7. The notice of motion shall stand dismissed. ........... RMA 7nmis46-09.sxw