The Appellant's suppression of material facts and false statement on oath, the requirement to discharge the debts of all creditors including the Respondent Bank in order to seek an order of annulment, and the inapplicability of the challenge to the impugned Order were the main legal points established in the judgment.

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 the learned Single Judge in Notice of Motion No.22 of 2018 recalling the Order of annulment dated 3rd December, 2014. The Order dated 18th September, 2018 shall thereafter be referred to as 'the impugned Order'.

6. Before going into merits of this Appeal, it is necessary to record certain facts which have transpired after filing of the present Appeal.

7.1 By an Order dated 25th February, 2020, this Court (Appeal Court) stayed the impugned Order and admitted the above Appeal.

7.2 Being aggrieved by the aforesaid stay order, the Respondent herein preferred Special Leave Petition Nos. 7380 of 2020 and 7381 of 2020 challenging the Order dated 25th February 2020 passed by this Court. The Special Leave Petitions were disposed of by the Supreme Court by its Order dated 27th August 2020 which reads thus :

"From the perusal of the order passed by the learned Single Judge, it could be seen that the order is well reasoned. It also appears from the order of the learned Single Judge that there was suppression of some material facts before the learned Single Judge. In such circumstances, the learned Division Bench ought to have considered the matter from this perspective.

It appears from the impugned interim order that the division Bench has not considered the suppression of material facts before the learned Single Judge. We request the Division Bench of the High Court to reconsider the issue of interim order. We also request the High Court to consider the impact of suppression and also consider the reason given by the learned Single Judge.

We further request the High Court that if it considers appropriate to decide the matter finally instead of deciding the question of interim relief, the same may be done within a period of one month from today. We are inclined to pass such order taking into consideration the huge public money involved in the litigation.

Accordingly, the Special Leave Petitions are disposed of."

8. We have gone through the impugned Order, the pleadings and Written Submissions filed by the parties.

9. Mr. Thakkar, appearing in person made submissions and contended that the Appellant seeks to challenge the impugned Order primarily on the ground that the claim of the Respondent Bank is a claim arising out of recovery certificate issued by the DRT and therefore; it is not a claim based on which insolvency proceedings can be commenced, as it is not a "decree" as contemplated under the provisions of the Insolvency Act. Therefore, according to him, the Order dated 03rd December 2014 was rightly passed. It was further submitted that in view of this legal position, the Appellant was correct in his submission that at that stage there was no other creditor. In order to substantiate his contentions, the Appellant placed reliance on the judgment of this Court in the mat