IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN INSOLVENCY PETITION NO.80 OF 2007 Re : Om Prakash Nihlani @ Nihalani & Anr. ...Debtors Ex-parte : Shiromani Manohar Singh Thakur ...Petg.Creditor ...... Mrs.Vaishali Thorat with Mr.P.V.Shah for Petitioning Creditor. Mr.P.V.Nichani for Debtors. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. DECEMBER 15, 2008. DECEMBER 15, 2008. DECEMBER 15, 2008. P.C. 1. Heard Counsel for the parties. 2. By this Petition, Petitioning Creditor invites order of adjudication of insolvency against the Debtors. That claim is founded on the decree passed by this Court in Summary Suit No.2598/2006 dated 13th February 2007. Since the amount payable under the decree remained unpaid, notice was issued : 2 : by the Petitioning Creditor on 24th August 2007. No response was given to the said notice. The act of insolvency was completed on 2nd November 2007. It is on that basis, present Petition has been filed on 14th November 2007. 3. The Debtors, consequent to service have filed reply. The only stand taken in the affidavit filed before this Court is that the Debtors intend to file appeal. On the basis of the said statement, this Court deferred the hearing of the present Petition on more than one occasion, awaiting decision of the Appellate Court. Significantly, the Debtors made statement before the Division Bench of this Court in Appeal No.117 of 2008 on 21st October 2008 that they would immediately deposit sum of Rs.10,00,000/- (Rupees Ten Lakhs). That undertaking given by the Debtors to the Appellate Court was accepted by the Division Bench and the Division Bench granted six weeks time dated 21st October 2008 to the Debtors. It is noticed that subsequently, the Appellate Court extended the time to deposit till 10th December 2008. However, the Debtors have failed to deposit : 3 : the amount as assured within specified time. As a result, on 12th December 2008, the Division Bench made it clear that pendency of the Appeal should not come in the way of Insolvency Court in proceeding with the insolvency action. In deference to the said exposition in order dated 12th December 2008 in Appeal No.117 of 2008, hearing of this Petition has to proceed. 4. As no other defence has been offered by the Debtors, the only conclusion that can be reached in the fact situation of the present case is that the Debtors are unable to pay their debt. 5. In the circumstances, Petition is made absolute in terms of prayer clauses (a) and (b). A.M.KHANWILKAR, J.