THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.M.S.A.45 OF 2008 JUDGMENT:- The appeal is filed against the judgment in A.S.No.84 of 2005 on the file of the Court of I Additional District Judge, Anantapur confirming the order dated 27-09-2005 of the Senior Civil Judge, Kadiri in I.P.No.17 of 2000. The appellant herein is the creditor and he filed the application under Sections 6 and 9 of the Insolvency Act, to declare the first respondent as an insolvent. According to the case of the appellant, the first respondent has borrowed a sum of Rs.45,000/- on 01-11-1997 and Rs.25,000/- on 01-06- 1998 and executed promissory notes. Respondents 1 and 2 are relatives. The petition schedule property is only property of the first respondent and the first respondent has executed a registered sale deed on 12-06-2000 in favour of the second respondent in a fraudulent manner. The property is worth Rs.6 lakhs. The first respondent continued to be in possession of the property in spite of the above sale deed. Therefore, the first respondent committed the act of insolvency. The second respondent filed a counter disputing the debts of the petitioner and it was further pleaded that the first respondent has mortgaged the suit schedule property on 12-01-1998 for Rs.1,50,000/- and thereafter sold the property for a sum of Rs.2,25,000/- for clearing of the mortgage debt and received the balance sale consideration of Rs.75,000/-. Therefore, the second respondent is a bona fide purchaser of the property for a valuable consideration. After considering the rival contentions and evidence on record, the Insolvency Court has dismissed the petition which was also confirmed by the first appellate court. Hence the present Second Appeal. This being a second appeal, the interference on a question of fact, which has been recorded by both the courts below is not warranted unless there is substantial miscarriage of justice. The learned counsel for the appellant contends that the mortgage transaction is not true and it is a nominal one and possession of the property was with the first respondent only inspite of the sale and relied on several house tax receipts to prove the same. Therefore, it is the contention of the appellant that the transaction is sham and nominal one without any consideration. As against this, the contention of the second respondent is that the sale deed Ex.B-2 supported by valid consideration. It is the case of the second respondent that on 12-01-1998 a sum of Rs.1,50,000/- was borrowed by the first respondent by mortgaging the schedule property and subsequently sold the same under Ex.B-2 sale deed on 12-06-2000. Therefore, the date of mortgage and the date of sale is more than two years. So far as the debt of the petitioner is concerned, Ex.A-1 debt is dated 01-11-1997 prior to the alleged mortgage whereas the second debt under Ex.A-2 dated 01-06-1998, which is subsequent to the mortgage. The insolvency court and the appellate court also found that if really an act of insolvency was committed, there is no reason as to why immediately after the creation of the mortgage in the year 1998, the petitioner has not chosen to challenge the same. On the other hand, even after the alleged mortgage, he has lent the money to the first respondent. Evidently, mortgage is a registered one and it is expected that there will be a notice. However, when the creditor is lending money to the debtor, he is expected to enquire about the other debts if any contracted by the debtor and would have been careful before lending money. The husband of the first respondent is the scribe of the promissory notes and also the attestor on a mortgage deed. The evidence of the appellant does not disclose as to what was the need to commit fraud on him. Evidently, there is also no material to show that any other creditors are affecting by the act of the first respondent. It is true a single creditor can file an Insolvency Petition, but, however, while judging the conduct of the debtor, the court has to see whether the debts were contracted by him and if there was any intention to defeat the genuine debts. Both the courts on question of fact have negatived the claim of the appellant and there are no grounds to interfere with the judgment of the lower court and there is no legal aspect involved in this appeal. Hence the appeal is liable to be dismissed. In the result, the Civil Miscellaneous Second Appeal is dismissed. No costs. _______________________ N.R.L. NĀGESWARA RĀO,J 22-09-2011 TSNR