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2019 DIGILAW 117 (MAD)

R. v. Jeevanram VS T. Muthuraman

2019-01-08

T.RAVINDRAN

body2019
JUDGMENT : (Prayer: Civil revision petition is filed, under Section 75 (1) of the Provincial Insolvency Act, to set aside the fair and decreetal order, dated 29.07.2008, passed in C.M.A.No.20 of 2004, on the file of the Additional District Judge, Fast Track Court No.II, Madurai, confirming the fair and decreetal order, dated 04.08.2003, passed in I.P.No.27 of 1997, on the file of the III Additional Sub Judge, Madurai.) 1. The civil revision petition is directed against the fair and decreetal orders, dated 29.07.2008, passed in C.M.A.No.20 of 2004, on the file of the Additional District Court / Fast Track Court No.II, Madurai, confirming the fair and decreetal orders, dated 04.08.2003, passed in I.P.No.27 of 1997, on the file of the III Additional Subordinate Court, Madurai. 2. The revision petitioner / creditor has laid the insolvency proceedings against the respondent / debtor, under Section 9 of the Provincial Insolvency Act, 1920 (hereinafter, referred to as “the Act”) to adjudicate the respondent / debtor as an insolvent and for other allied relief’s. 3. Briefly stated, it is found that based on the assignment of the promissory notes, said to have been executed by the respondent, detailed in the petition and inasmuch as the respondent had failed to repay the borrowed sum, despite notice and on the other hand, attempting to alienate the property belonging to him with a view to defeat the lawful claims of the revision petitioner, accordingly, contending that thereby, the respondent has committed the act of insolvency and to be adjudicated so, the revision petitioner has come forward with the above said petition. 4. The respondent has disputed the borrowal of the amount under the various promissory notes as alleged in the petition and contended that only a sum of Rs.73,000/- had been borrowed by him on 08.03.1995 from T.John Ponnu and the other promissory notes had been taken as security in connection with the chit transaction and denied the execution of the other promissory notes as such and accordingly, put forth the case that he had also paid certain amounts towards the borrowed sum and contended that he had sold the property only for his personal necessity and to discharge the loans and also putforth the case that he is working in the Transport Corporation and getting the monthly income and thereby, repudiated the case of the revision petitioner and prayed for the dismissal of the petition. 5. 5. Based on the materials placed on record by the respective parties both oral and documentary, the Trial Court as well as the Appellate Court, on holding that the revision petitioner has failed to establish the act of insolvency on the part of the respondent and his alleged attempt to alienate the property belonging to him with a view to defeat the creditors, as such, dismissed the petition preferred by the revision petitioner. Aggrieved over the same, the present civil revision petition has been preferred. 6. The revision petitioner has preferred the creditor insolvency petition to declare the respondent as an insolvent, on the footing that despite the borrowal of the sums by the respondent under the various promissory notes, he had failed to repay the same, despite several demands and notices and on the other hand, attempting to alienate the property belonging to him, with a view to stifle the claims of the creditors, like the revision petitioner and accordingly, prayed for adjudicating him as an insolvent. 7. The respondent resisted the revision petitioner's case contending that he had not borrowed the sums as averred in the petition and also endeavoured to repay the borrowed sum as detailed in the counter and furthermore, contended that only to meet his personal needs, he had alienated the property and not for any other reason and also put forth the case that he is still employed and earning the monthly income and therefore, not committed any act of insolvency and therefore, prayed for the dismissal of the petition. 8. From the materials placed on record, as determined by the Courts below, it is found that the respondent borrowed the sums as detailed in the promissory notes marked as Exs.A1 to A4. However, by way of the same alone, the respondent cannot be held to be an insolvent, as sought to be made out by the revision petitioner. The main thrust of the revision petitioner's case seems to be that the respondent is attempting to alienate the property belonging to him with a view to defeat or delay the creditors, like the revision petitioner and hence, on that score alone he is to be adjudicated as an insolvent. The main thrust of the revision petitioner's case seems to be that the respondent is attempting to alienate the property belonging to him with a view to defeat or delay the creditors, like the revision petitioner and hence, on that score alone he is to be adjudicated as an insolvent. However, when the above said case of the revision petitioner is repudiated by the respondent in toto, unless there is proof on the part of the revision petitioner that the respondent is attempting to alienate the property with an intention to defeat or delay the creditors, like, the revision petitioner, he would not be entitled to obtain the relief’s as prayed for. 9. As could be assessed from the materials placed on record, it is found that the respondent has alienated the house property belonging to him only to discharge the housing loans and also to meet the family expenses and other medical expenses and therefore, by way of the same alone, in isolation, it cannot be held that the respondent had alienated the property belonging to him with an intention of defeating or delaying the creditors, like, the revision petitioner. In this connection, the respondent has also produced certain documents and as analyzed by the Courts below and therefore, it is found that the Courts below have appreciated the materials in the right perspective and found that the above said acts of the respondent, by itself, would not constitute the act of insolvency, particularly, when there is no material on the part of the revision petitioner to hold that the alienation made by the respondent is done with an aim of defeating or delaying the creditors, like the revision petitioner. 10. As determined by the Court below, the respondent is still employed in the Transport Corporation and earning the monthly income. Therefore, it is found that he would be in a position to discharge the loans due to the revision petitioner and the other creditors as the case may be and in such view of the matter, the contention of the revision petitioner that the respondent should be adjudicated as an insolvent merely on his failure to repay the borrowed sums, as such, cannot be readily countenanced. 11. 11. For determining the respondent as an insolvent, the conditions stipulated under Section 6 of the Act have to be satisfied by the revision petitioner and when on the basis of the materials available on record, the revision petitioner is found to have not satisfied the ingredients set out in the above said Section for holding that the respondent has committed the acts of insolvency as such, it is found that the Courts below have rightly rejected the petition preferred by the revision petitioner and in such view of the matter, I do not find any valid reason to interfere with the orders of the Courts below in dismissing the petition preferred by the revision petitioner. 12. For the reasons afore stated, the revision petition is not entitled for acceptance and accordingly, the same is dismissed. No costs.