1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN INSOLVENCY NOTICE OF MOTION NO.19 OF 2010 IN INSOLVENCY NOTICE NO.N/374 OF 2006 M/s.Jayantilal Khandwala & Sons & Ors. ....Judgment Debtors Ex-parte : Rosy Blue Securities Pvt. Ltd. ....Judgment Creditors Mr.Vivek Shetty i/b D.S.K. Legal for the Petitioning Creditor. Mr.J.P. Sen with Mr.Vivek Kantawalla i/b M.D. Vivek Kantawalla & Co. for the Judgment Debtor. Mr.Kishore Jain i/b P.V. Shah for the Applicant. CORAM : S.J. VAZIFDAR, J. DATE : 15TH JUNE, 2010. P.C. :- 1. This Notice of Motion is not maintainable. 2. The Applicants/debtors seek an order setting aside the Insolvency Petition No.N-374 of 2006 issued by the judgment creditors on 22.12.2006. The debtors also seek an order staying further proceedings in Petition No.42 of 2007. Further an order is sought staying the proceedings till 28.9.2010 in view of the minutes of the order dated 15.9.2010. 3. Insolvency Petition No.42 of 2007 was filed in view of the act of 2 insolvency committed by the debtors. Before the Petition was finally disposed of, there was a settlement between the Petitioning creditors and the debtors. As recorded in the order dated 15.9.2009, itself the learned Judge had earlier taken every pre-caution to ensure that the proposed settlement between the Petitioning creditors and the debtors does not affect the rights of the creditors. An advertisement intimating the other creditors of the proposed settlement was ordered to be issued. An advertisement was accordingly published. M/s.D.J.S. Shares & Creditors Pvt. Ltd. (hereinafter refer to as the “Supporting Creditor”) sought to be substituted as the Petitioning creditor. The Supporting creditor had a claim only against debtor No.2. The said order recorded that the learned counsel appearing on behalf of the Supporting creditor and the debtor submitted on instructions from their respective clients that the Supporting creditor may be substituted as the Petitioning creditor in Petition No.42 of 2007 to the extent of pursuing the Petition against debtor No.2 and the minutes of the order be passed only qua debtor Nos.1, 3 and 4. It was accordingly ordered. 4. In the circumstances, irrespective of whether the debtors’ pay the amount as per the minutes of the order or not the rights of the Supporting creditor to pursue this Petition cannot be questioned. 5. Mr.Sen however, relied upon clause 5 of the minutes of the order which inter-alia provide that in the event of the debtor complying with the terms of repayment stated therein, the insolvency notice be set-aside and Insolvency Petition No.42 of 2007 shall stand dismissed without recourse to the Court. Clause 5 is of no assistance to the debtors in view 3 of the order and judgment dated 20.6.2009. The operative part of the order expressly states that the minutes are taken on record and that the order is only in terms of the minutes passed qua debtor Nos.1, 3 and 4. In other words, the order does not operate in respect of debtor No.2 and it expressly reserved the rights of the Supporting Creditor. 6. In the circumstances, the Notice of Motion is dismissed. The Applicant shall pay the costs of this Notice of Motion to the Supporting Creditor fixed at Rs.10,000/- within two weeks from today.