1 IN IN IN THE HIGH COURT OF JUDICATURE OF BOMBAY THE HIGH COURT OF JUDICATURE OF BOMBAY THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION IN INSOLVENCY NOTICE OF MOTION NO.38 OF 2008 IN NOTICE NO.N/18 OF 2008 Re: M/s.Jag Amba Syndicate & Ors. ..Judg.Debtors. Ex-parte: M/s.Thakkar Money Multipliers Pvt.Ltd. ..Judg.Creditors. Mr.Rohan Cama i/b. Mrs. R.R.Ajinkya for Judg.Creditor. Mr.I.G.Madnani for debtors. CORAM: CORAM: CORAM: A.M.KHANWILKAR,J A.M.KHANWILKAR,J A.M.KHANWILKAR,J DATE DATE DATE : DECEMBER 11, 2008. : DECEMBER 11, 2008. : DECEMBER 11, 2008. P.C. P.C. P.C. : : : 1. Heard Counsel for the parties. 2. By this Motion, Judgment Debtors pray that Notice bearing No.N/18/2008 dated 29th March, 2008 served on them on 14th April, 2008 be set aside. There is delay in filing of the present Motion. The delay is stated to be of 11 days. I will proceed on the assumption that the Judgment Debtors have made out sufficient cause for condoning delay of 11 days. The question is whether the Judgment Debtors have made out any good case for granting substantive relief in the Motion as prayed. 2 3. According to the Judgment Debtors, they have already paid sum of Rs.5 Lakhs to the Judgment Creditors and the Judgment Creditors had not shown necessary adjustment of that amount. This argument is of no avail to the Judgment Debtors. In that the decree on the basis of which action of insolvency is founded is for a sum of Rs.23,50,000/- alongwith the interest accrued thereon aggregating to sum of Rs.33,82,807.41/-. Even if the Judgment Debtors are justified in contending that they are entitled for adjustment of payment of Rs.5 Lakhs, it does not result in satisfaction of the decree which is operating against the Judgment Debtors. In any case, the argument regarding adjustment to be given in relation to the payment of Rs.5 Lakhs was specifically canvassed by the Judgment Debtors before the Civil Court in the Summary Suit No.1250 of 2006 and that is rejected by the Learned Judge on the finding that the cheque was not given towards repayment of the loan and cannot be the subject matter of the suit claim of the Judgment Creditors. That finding has attained finality. In fact, the Judgment Debtors have not bothered to challenge the said decree passed by the Civil Court. If it is so, the fact that the Judgment Debtors have paid sum of Rs.5 Lakhs to the Judgment Creditor does not take the matter any further. 3 4. Counsel for the Judgment Debtors then relies on letter of allotment dated 5th July, 2004. According to the Judgment Debtors, the Judgment Creditors have accepted the allotment of shop. Once again this argument clearly overlooks that the decree passed against the Judgment Debtors is in subsequent point of time. The decree has gone unchallenged. If it is so, the Judgment Debtors are bound to satisfy the decree and argument of letter of allotment will be of no avail to them. 5. Since the Judgment Debtors are not in a position to make out any good ground for interference, Motion deserves to be dismissed. 6. Counsel appearing for the Judgment Debtor was informed that the Judgment Debtors if so desire, they may seek sufficient time for repayment of all the outstanding dues payable to the Judgment Creditors. However, no offer in that behalf has been made. 7. At this stage, Counsel for the Judgment Debtors submits that the Judgment Debtors would repay the outstanding dues of the Judgment Creditors in equal instalment of Rs.2 Lakhs per month. This offer is not acceptable to the Judgment Creditors. In my 4 opinion, the Judgment Creditor are justified in contending that since it was a loan transaction between the parties interse and the Judgment Debtors are engaged in construction business, minimum instalment that should be paid by the Judgment Debtors should in the sum of Rs.5 Lakhs per month and nothing less. This is so because the Judgment Creditor is a senior citizen and unwilling to wait beyond a point for recovery of the amount from the Judgment Debtors. 8. In the circumstances, I proceed to pass following conditional order. (i) The Judgment Debtors shall pay 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 alongwith 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 dismissed 5 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). 9. Ordered accordingly. 10. It is made clear that rate of interest quantified at 12% p.a. will apply to the outstanding dues payable under the decree as on today. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)