I C D S Ltd. v. N. P. Dalal

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

IN INSOLVENCY NOTICE OF MOTION NO. 45 OF 2014 IN INSOLVENCY PETITION NO. 41 OF 2002 Re: Noshir Phiroze Dalal ...

Applicant / Insolvent.

IN THE MATTER BETWEEN :

Noshir Phiroze Dalal ..

Applicant

Versus

1. ICDS Limited

2. The Official Assignee, High Court, Bombay.

...

Respondents None for the Petitioning Creditor.

Shri K.J.Somane for the Insolvent.

Shri M.D.Narvekar, Official Assignee, present. CORAM: S.J.KATHAWALLA, J.

DATE : JANUARY 6, 2015 P.C. :- 1.

By the above Notice of Motion, the Insolvent has prayed that the Order of adjudication dated 17th June, 2003, passed in Insolvency Petition No.41 of 2002 may be annulled under Section 21(2) of the Presidency Towns Insolvency Act, 1909, and all the acts, actions things done in pursuance thereto be cancelled and set aside and declared null and void. In support of this prayer, the Insolvent has relied on the decision of the

Hon'ble Supreme Court of India in Paramjeet Singh Pathecha V/s ICDS, reported in AIR 2002 S.C.168, wherein it was held that the Insolvency Notice cannot be issued under Section 9(2) of the said Act on the basis of an arbitration award, and he has also relied on the Judgment passed by the Single Judge of this Hon'ble Court, the Hon'ble Shri Justice A.S.Oka in Kishore K.Mehta V/s. HDFC Bank Ltd., 2008(1) M.L.J.451. 2.

The Official Assignee has drawn my attention to the orders passed by the Hon'ble Division Bench of this Court dated 6th January, 2010 in Appeal No. 232 of 2009 in Notice of Motion No. 46 of 2008 in Insolvency Petition No.6 of 2001, inter alia recording that by an order passed by the Hon'ble Supreme Court on 10th January, 2008 the view taken in Paramjeet Singh Patheja (supra) has been referred to a larger Bench. The Hon'ble Division Bench has further held in paragraph No.5 of the said order, as follows:

"In our considered opinion, it would be appropriate to wait for the decision of the larger Bench arising from S.L.P.(Civil) No. 23495 of 2007 and hence we adjourn this Appeal for two months. Stand over to 5th March,2010."

3.

Thereafter, the same matter appeared before another Division Bench of this Court and by an order dated 7th June, 2010 when liberty was granted to the parties to move the Court after the said reference made to the larger Bench was decided by the Hon'ble Supreme Court.

4.

In view of the above facts, no orders are passed on the above Notice of Motion. The same is dismissed as withdrawn with liberty to the Applicant/ Insolvent to file a fresh Notice of Motion if so advised after the issue raised in the said Reference is answered by the Hon'ble Supreme Court.

5.

In the meantime, the Insolvent shall appear before the Official Assignee on 14th January, 2015 at 3.00 p.m. for examination. The Official Assignee shall close the examination of the Insolvent on that day. The Insolvent through his Counsel also undertakes that until further orders, he shall not dispose of, alienate, encumber, part with possession and/or create any third party rights in respect of any of his properties. The undertaking is accepted.

( S.J. KATHAWALLA, J. )