Judgment : This is an application filed by the respondent debtor, seeking to set aside the notice of insolvency dated 12. 2009 in I.B.No. 9 of 2009, dated 3. 2009. 2. The Notice of Insolvency in I.N.No.9 of 2009 is filed by the respondent/petitioning creditor to the applicant debtor in terms of Section 9(2) of the Presidency Towns Insolvency Act, 1909 and Order III (A) of the Insolvency Rules. It was stated by them that a suit was filed in CC No. 770 of 1997 and the suit was decreed, by an order, dated 7. 2006. As against the said order, the applicant filed appeals in OSA Nos.236 to 238 of 2006. A Division Bench of this Court by its judgment, dated 9. 2008, dismissed the appeals. A further appeal to the Supreme Court in Special Leave to Appeal (Civil) Nos 25807 to 25810 of 2008 was also dismissed by the Supreme Court on 11. 2008. It was in these circumstances, the petitioning creditor assessed the value of the decreetal amount as Rs.39,46,692.91 and since no security is available for the said sum and that the decree had not been satisfied, the notice of insolvency was sought to be served on the respondent/debtor. 3. The debtor has now come forward with the present application, stating that the petitioning creditor has also filed E.P.No.511 of 2008 and he is resisting the Execution Petition, Since the original decree is an ex parte decree and the executability an well as the maintainability of the decree was under challenge and the matter is pending before the Master, and that the applicant has valuable defence, the institution of insolvency proceedings was improper, it was contended that the proceedings instituted by the petitioning creditor was not bona fide. For this purpose, reliance was placed upon certain decisions of this Court and the Supreme Court. 4. The learned counsel for the applicant first placed reliance upon the judgment of the Division Bench of this Court in S.A. Ramalinga Mudaliar v. T.K. Ratna Mudaliar and Another AIR 1963 Mad 181 : (1963) 1 MLJ 37. He referred to the following passages found in paragraphs 8 and 9 of the said judgment, which are as follows at p. 40. of MLJ: “8. He referred to the following passages found in paragraphs 8 and 9 of the said judgment, which are as follows at p. 40. of MLJ: “8. … An adjudication of a debtor as a bankrupt is not a method of collecting a debt, though, as a result of it, the creditor may get paid. Essentially, an adjudication brings about a change in the status of a debtor and enables the official Assignee or receiver in whom the property of the debtor gets vested to administer or sell it to pay off his creditors. It is only a particular class of creditors (vide Section 12) that can file a petition for adjudication. And no absolute right is given to them to obtain an adjudication as the Court will dismiss the petition if the conditions laid down in Section 13 are satisfied. 9. … The attempt of the first respondent was therefore to bring to disgrace a man in apparently good circumstances. The later has been a recalcitrant debtor. Indeed he went further; he was not averse to adopt subterfuges to delay payment. But that cannot justify the creditor, purely out of spite and with no other object in view, to adjudge him bankrupt. The application for adjudication cannot, therefore, be regarded as a bonafide one and has therefore to be dismissed.” .5. Further, reliance was also placed upon the judgment of the Supreme Court in Sarat Chandra Roy v. Harak Chand Damani and Another AIR 1972 SC 2127 : (1973) 3 SCC 187 and reference was made to the following passage found in paragraph 1, which is as follows: .“1. …. Non-payment of a decree promptly by itself is no ground to adjudicating a person insolvent. Appellant appears to be a person of substantial means, in this case insolvency proceedings appear to have been initiated as an alternative to execution proceedings.” 6. The learned counsel for the applicant also placed reliance upon the decision of this Court in Anand Prakash v. T.N Shanmugam 1995 LW 88 for the purpose of contending that when a debtor satisfies the Court, that he will be able to pay debts and that insolvency proceedings initiated not with any genuine desire to have the properties of the debtor administered for the benefit of the body of the creditors, than the application of the creditor should be rejected. .7. .7. The learned counsel relied upon the judgment of this Court in P.R. Venkateswaran and Others v. R. Shanmugam, AIR 1987 Mad 143 : (1987) 1 MLJ 22 . A reference was made to the following passage found in para 22 of the said judgment, which reads as follows at p. 30 of MLJ: .“22. … Therefore, it appears that the petitioning creditors’ had chosen to the present adjudication proceedings more to disgrace the debtor-respondent rather than to recover the amount due to them, which could have been done under the normal, process of law. In the circumstances even assuming that the debtor-respondent has committed an act of insolvency, which actually has not been established, the petition is liable to be dismissed, under Section 13(4) (b) of the Act, both on the ground that the debtor – respondent is able to pay his debts and also for ‘other sufficient cause.” .8. In the present case, the question is whether the decisions cited by Mr. R. Thiagrajan, the learned counsel for the applicant are available to the case on hand. In all the cases cited above, there was a finding that the respondent debtor had either means to satisfy the decree or there was no occasion to invoke the provisions of Section 9(2) of the Presidency Towns insolvency Act. In the present case, the applicant had the benefit of an appeal before a Division Bench. After losing out the case, his attempt to challenge it before the Supreme Court having failed, the decree has become final. Except by stating that the decree has been questioned before the execution Court, he has not come up with any plea with reference to the means to satisfy the decree. Therefore, the legal precedents cited by him are inappropriate to the facts and circumstances of this case. 9. The grounds under which the insolvency notice may be set aside has been out under Section 9(5). It is only in those cases, an application of this nature can be entertained. In the present case, the petitioner neither put forth any counter claim in terms of Section 9(5)(a) nor he was entitled to have a decree set aside under any law providing relief from indebtedness. It is only in case of defence made under Section 9(5)(b) that decree cannot be executed in terms of Section 9(5)(c) of the PTI Act. 10. In the present case, the petitioner neither put forth any counter claim in terms of Section 9(5)(a) nor he was entitled to have a decree set aside under any law providing relief from indebtedness. It is only in case of defence made under Section 9(5)(b) that decree cannot be executed in terms of Section 9(5)(c) of the PTI Act. 10. It is necessary to refer to the judgment of this Court, in Pavithra Agencies, rep. by its Partners and Others v. Jayashree P. Khatri (2007) 4 MLJ 222 . The following passages found in paragraphs 10 and 11 of the said judgment may be usefully extracted below at p.224 of MLJ: “10. For all these reasons, the non-filing of Execution Petition by the respondent/petitioning-creditor may not be taken as a ground for setting aside the Insolvency Notice, by mentioning that had the creditor filed the Execution Petition, there could have been prospective chance for the applicants/judgment-debtors to obtain a stay thereof. Such kind of reading of Section 9(2) of the Act is against the intention of the Legislature; because at page 90 of the Mulla on the Law of Insolvency in India, fourth edition 1997 by MS. Sathya Narayan, it has been mentioned as follows: “Subsequent to the State Amendments to the Presidency Towns Insolvency Act and the Provincial Insolvency Act under the title Bombay Amendment Act, 1939 (Bombay Act. No.15 of 1939) amending Section 9 and 6 of the Acts respectively incorporating provisions regarding Insolvency notice, a Central amendment was proposed to be introduced to the Acts on the basis of recommendations put forth by the Law Commission in its third Report on the Limitation Act. The recommendations were particularly in the form of solutions to effectively, execute simple money decrees, which otherwise had become very difficult. Thus on the lines of State Amendment made to the Presidency Town Insolvency Act and the Provincial Town Insolvency Act the Law Commission recommended to add a new “Act of Insolvency” which was the most effective way of instilling a healthy fear in the mind of a dishonest judgment-debtor, it was therefore recommended to add that a debtor, who had not complied with the insolvency notice served on him by a creditor, who had obtained a decree or order against him for payment of money within a period specified in the notice, he would be adjudicated insolvent.” 11. Further, it is to mentioned that to take advantage of the checks against the creditor as found under Section 9(2) of the Act, the debtor himself would have filed appeal against the decree-holder and would have obtained an order of stay of operation of decree pending appeal. When that act was not done by the judgment-debtors themselves, they cannot go against the tenor of the amended provision, of Section 9(2) of the Act and compel the creditor to file Execution Petition so as to create, a climate of getting the stay against the same.” 11. In the case cited above, the argument that a petitioning creditor must avail the execution remedy before filing an insolvency proceedings was rejected. In the present case, the defence taken was that the application is questioning the decree in the pending execution proceedings. Such defences are not available to the applicant as held by this Court. This Court is unable to agree with the stand taken by the applicant. 12. Therefore, this application is dismissed. No costs.