Akshay D Thakkar vs Kotak Mahindra Bank Limited

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Bom) 977

S.J.KATHAWALLA, PRITHVIRAJ K.CHAVAN
Akshay D Thakkar – Appellant
Versus
Kotak Mahindra Bank Limited – Respondent

Advocates appeared:
Akshay D Thakkar (Appellant Present In Person), Rohit Gupta, Advocate, Nikhil Rajani, Advocate, V. Deshpande And Co, Advocate, Ramesh Jain, Advocate

Judgement Key Points

What is the scope of the debtor's duty to discharge all debts of all creditors to obtain annulment under Section 21 of the Presidency Towns Insolvency Act, 1909? What constitutes a "creditor" and a "debt" for the purposes of annulment and how do Section 46(3) and inclusive definitions affect debts provable in insolvency? How does suppression of material facts and misstatement on oath impact the validity of an annulment order and the ability to challenge it?

What is the scope of the debtor's duty to discharge all debts of all creditors to obtain annulment under Section 21 of the Presidency Towns Insolvency Act, 1909?

What constitutes a "creditor" and a "debt" for the purposes of annulment and how do Section 46(3) and inclusive definitions affect debts provable in insolvency?

How does suppression of material facts and misstatement on oath impact the validity of an annulment order and the ability to challenge it?

JUDGMENT

S.J.Kathawalla, J. - By an Order dated 22nd April, 2010 in Insolvency Petition No.5 of 2010, the Appellant - Akshay B. Thakkar was adjudicated insolvent.

2. Thereafter, by an Order dated 3rd December, 2014 passed in Notice of Motion No.52 of 2014, the Order of adjudication dated 22nd April, 2010 was annulled under Section 22(1) of the Presidency Towns Insolvency Act, 1909 ("Insolvency Act").

3. Respondent No.1 Bank i.e. Kotak Mahindra Bank Ltd., filed a Notice of Motion No.22 of 2018 seeking recall of the Order of annullment dated 3rd December, 2014 primarily on the ground that the Appellant deliberately concealed from the Court, the fact that the Respondent Bank herein was one of the creditors, having a recovery certificate from the Debts Recovery Tribunal ("DRT") and therefore, without considering the Respondent's claim, the Order of annulment ought not to have been passed.

4. By an Order dated 18th September, 2018, the learned Single Judge allowed Notice of Motion No.22 of 2018 filed by the Bank i.e. the Order of annulment dated 3 rd December, 2014 was recalled.

5. By the present Appeal, the Appellant / Insolvent has impugned the Order dated 18th September, 2018 passed by th

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2021 Supreme(Bom) 977

S.J.KATHAWALLA, PRITHVIRAJ K.CHAVANAkshay D Thakkar – AppellantVersusKotak Mahindra Bank Limited – Respondent

What is the scope of the debtor's duty to discharge all debts of all creditors to obtain annulment under Section 21 of the Presidency Towns Insolvency Act, 1909?

What constitutes a "creditor" and a "debt" for the purposes of annulment and how do Section 46(3) and inclusive definitions affect debts provable in insolvency?

How does suppression of material facts and misstatement on oath impact the validity of an annulment order and the ability to challenge it?

Cases Referred (4)

S.J.KATHAWALLA, PRITHVIRAJ K.CHAVAN
Akshay D Thakkar – Appellant
Versus
Kotak Mahindra Bank Limited – Respondent