Judgment : ORAL JUDGMENT : 1. The substituted Petitioning Creditor seeks an order of adjudication against the debtor. 2. The question that arises for consideration is whether an insolvency petition is maintainable at the instance of a substituted creditor if his claim is barred by limitation on the date on which he was substituted, even if it was not barred by limitation on the date on which the act of insolvency was completed. I find myself compelled to answer the question in the affirmative in view of a judgment of a Division Bench of this court. 3. On 21st August, 1993, Insolvency Notice No.120/1993 was issued at the instance of the original Petitioning Creditor. It was served on the debtor on 26th November, 1993. The act of insolvency was committed on 1st November, 1994. On this date, the substituted Petitioning Creditor’s claim was not barred by limitation. The original Petitioning Creditor filed the above petition on 25th January, 1994. The original Petitioner’s claim was subsequently settled. On 3rd December, 1996, an order of adjudication was passed at the instance of the fourth substituted Petitioning Creditor. On 5th December, 1996, the debtor filed Appeal No. 1318 of 1996, challenging this order. By an ad-interim order dated 7th January, 1997, the appeal court stayed further proceedings in insolvency. The appeal was admitted on 4th March, 1997 and the order of adjudication was stayed. On 1st August, 2005, the appeal court directed the debtor to deposit Rs. 5,00,000/-. By an order dated 10th August, 2005, the appeal court set aside the order of adjudication, restored the insolvency petition to file and directed the debtor to deposit a further sum of Rs.2,00,000/-. The claim of the fourth substituted Petitioning Creditor was also subsequently settled. 4. The present substituted creditor made an application for substitution on 15th October, 2007. By an order dated 1st December, 2009, the application was allowed and the present substituted Petitioning Creditor was allowed to prosecute the petition. The plea of limitation was kept open. There is no dispute that had there been an order of adjudication, every creditor whose claim was valid and within the period of limitation on the date on which the act of insolvency was committed, would be entitled to claim in insolvency. Mr. The plea of limitation was kept open. There is no dispute that had there been an order of adjudication, every creditor whose claim was valid and within the period of limitation on the date on which the act of insolvency was committed, would be entitled to claim in insolvency. Mr. J.P. Sen, the learned counsel appearing on behalf of the debtor, however, submitted that in the present case, there is no order of adjudication. The question, therefore, of a creditor making a claim in insolvency does not arise. 5. Mr. Sen submitted that if on the date of the application for substitution, the claim of the substituted Petitioning Creditor is barred by limitation, he would not be entitled to an order of adjudication. In support of this submission, he relied upon a judgment of a Division Bench of this court in the case of Sunder Parmanand Lalvani v. Shreepad Moreshwar Velkar & Anr., 1987 BLR Vol. LXXXIX, 94. Although a strenuous attempt has been made to contend that the ratio of the judgment of the Division Bench was not as contended on behalf of the debtors, I find it is. In that case, insolvency notice No.N/25/1980 was issued and served on the Judgment Debtor. Insolvency Petition No.27 of 1980 was filed by the original Petitioning Creditor. The substituted Petitioning Creditor had filed a suit on 21st December, 1981, which was subsequently numbered as Suit No. 91 of 1982. By an order dated 23rd August, 2005, leave for substitution was granted. On 28th January, 1986, the learned single Judge passed an order of adjudication against the insolvent. The debtor filed an appeal against this order in which the judgment was delivered. The Division Bench held as under :- “..................................We have been told that the suit has been subsequently withdrawn. We will ignore for the time being the withdrawal of the suit and indeed ignoring the same we may now proceed to analyse the plaint. Prima facie it would appear that the claim in suit was clearly barred by the law of limitation on the date on which the suit was filed, i.e., in 1982 itself. We will ignore for the time being the withdrawal of the suit and indeed ignoring the same we may now proceed to analyse the plaint. Prima facie it would appear that the claim in suit was clearly barred by the law of limitation on the date on which the suit was filed, i.e., in 1982 itself. The question then to be considered whether such a creditor, i.e., a creditor whose claim was time barred in the past, i.e., even before he was brought on the record as a substituted petitioning creditor, was entitled to be substituted, thereafter to maintain the petition and finally to obtain an order of adjudication against the judgment debtor. To hold contrary would be absurd. The Insolvency Petition was filed in 1980 by the American Company. Suppose, in the present suit under consideration a preliminary question as to limitation had been raised and answered in favour of the defendant and against the plaintiff prior to 1985 and the matter not carried further, could the plaintiff in the said suit have applied for being substituted or if an order of substitution was passed because the insolvent chose to remain absent, could he have secured an Order of Adjudication? Once posed in this matter, the answer to the question under consideration must be clearly in the negative. ........................ We have, therefore, before us the clear position that in 1982 itself the claim of the present substituted petitioning-creditor had become time barred. Indeed it would appear to us on a perusal of the plaint in Suit No.91 of 1982, where the cause of action is stated to be on cheques encashed in Bombay, which encashment took place some time in 1972, that the claim was hopelessly time barred. .............................. Thus it is clear that when the substituted petitioning creditor was allowed to be substituted, i.e., by Aggarwal J. on August 23, 1985, his claim was time barred. Indeed it is pertinent to note that it is not clear whether till that time the defendant in that suit had been served. We are told by Mr. Samant that he was served and was represented by an advocate. However, there was no written statement and still the plaintiff in that suit, i.e., the substituted petitioning creditor, had refrained from applying to Court for judgment for want of written statement. We are told by Mr. Samant that he was served and was represented by an advocate. However, there was no written statement and still the plaintiff in that suit, i.e., the substituted petitioning creditor, had refrained from applying to Court for judgment for want of written statement. Thus, the suit was merely kept alive because, perhaps, to take a decision would have been to invite an adverse decision on the plea of limitation. ............................. In the view that we have taken, the relevant point of time for consideration would be August 23, 1985 which is the date on which the substituted petitioning creditor comes to the Court seeking an order of adjudication. On that day if his claim against the debtor was not subsisting, then, in our opinion, no order of adjudication can be subsequently passed merely because his right to be substituted was not contested and his claim not then investigated by the Court ordering substitution. If that be so, the appeal will have to be allowed and for the reason indicated, the order of adjudication set aside.” [Emphasis supplied] I find if difficult to accept the submission that the judgment was based, not on the fact that the claim of the substituted Petitioning Creditor was barred on the date of the act of insolvency, but that it was barred prior thereto. Had that been the case, the Division Bench would have noted whether the act of insolvency was before 12th September, 1980 as the Division Bench had noted that there was a letter dated 12th September, 1977 which would have constituted an acknowledgment of liability extending the period of limitation three years thereafter. 6. It is commendable that the Insolvency Registrar, who was present in court, invited the attention of the court and the advocates to the judgment of a Division Bench of this court in Bharat Chandulal Nanavati vs. UCO Bank AIR 1992, Bom. 170, where it was held as under :- “8. It appears to us clear upon an interpretation of the relevant provisions of the Act, that at the hearing of the petition the court shall require proof of the debt of the petitioning creditor which has to be mentioned in his petition by reason of the provisions of S.12(1) (a) and (b); similarly, of the act of insolvency on which the petition is grounded u/S.12(1) (c). S.51 provides that the insolvency of a debtor relates back to and commences on the date on which the debtor has committed the ct of insolvency based upon which the order of adjudication is made. S.17 debars any creditor of the insolvent from any remedy against the insolvent in respect of any debt provable in insolvency except as provided by the Act. A debt provable in insolvency is a debt which is not time-barred upon the day to which the insolvency relates back. Therefore, the debt upon which the creditor is entitled to present an insolvency petition and which he must prove at the hearing of the petition must be a debt which is not time-barred on the date upon which the debtor commits the act of insolvency based upon which the order of adjudication is made against him.” The judgment is certainly of assistance to the substituted Petitioning Creditor. 7. Relying upon this judgment, the learned counsel appearing on behalf of the substituted Petitioning Creditor submitted that in any event, there is a conflict between the two judgments. He further submitted that the attention of the Division Bench in Sunder vs. Shreepad was not invited to the provisions of sections 51, 91 and 92 of the Presidency Towns Insolvency Act, 1909, which makes all the difference to the point under consideration. He submitted that in any event I ought to direct the office to place the matter before the learned Chief Justice for consideration whether the matter ought to be referred to a larger bench. 8. Considering the importance of the question involved, the large scale ramifications it has on the general body of creditors in several matters, I would have done so had I been a member of a Division Bench. However, the judgment in the case of Sunder vs. Shreepad deals directly with the question under consideration and I do not consider it appropriate sitting as a single Judge not to follow it and instead to refer the matter to the learned Chief Justice under Rule 28. This is despite the fact that the relevant provisions of law were obviously not brought to the notice of the Division Bench. The proper course would be to follow the judgment and leave it to the parties to try and pursuade the Division Bench to make such a reference. 9. In the circumstances, the petition is dismissed. This is despite the fact that the relevant provisions of law were obviously not brought to the notice of the Division Bench. The proper course would be to follow the judgment and leave it to the parties to try and pursuade the Division Bench to make such a reference. 9. In the circumstances, the petition is dismissed. This order, however, is stayed upto and including 31st December, 2010. In the facts of this case, there shall be no order as to costs.