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MAHARAJ SINHA, J.
SICOM Ltd.
v.
Bajranglal Jain and Anr.
I.C. No. 5 of 2003
Decided on : 9 -6 -2006.
INSOLVENCY - ACT OF INSOLVENCY - SERVICE OF NOTICE - SUFFICIENCY - PRESIDENCY TOWNS INSOLVENCY ACT, 1909, SECTION 9(2), 9(3).
Fact of the Case:
The creditor, SICOM, filed an insolvency petition against the debtors, Bajranglal Jain and Suresh Jain, on the ground that they had committed acts of insolvency within the meaning of Section 9(2) of the Presidency Towns Insolvency Act, 1909. SICOM claimed that it had served the debtors with notices under Section 9(3) of the Act, but Bajranglal disputed the service of the notices.
Finding of the Court:
The court found that SICOM had made repeated attempts to serve the notices on the debtors, and that the debtors had tried to avoid service. The court also found that the notices were sent to the correct addresses of the debtors, and that the debtors had not denied the correctness of the addresses.
Issues: 1. Whether the notices under Section 9(3) of the Act were duly served upon the debtors. 2. Whether the debtors committed acts of insolvency within the meaning of Section 9(2) of the Act.
Ratio Decidendi: 1. The court held that the notices were duly served upon the debtors, even though they had tried to avoid service. The court relied on the fact that the notices were sent to the correct addresses of the debtors, and that the debtors had not denied the correctness of the addresses. 2. The court held that the debtors had committed acts of insolvency within the meaning of Section 9(2) of the Act, as they had failed to comply with the notices served upon them under Section 9(3) of the Act.
Final Decision: The court declared the debtors insolvent and vested their property in the Official Assignee.
(a) That an order be passed declaring the said judgment-debtors as insolvents;
(b) That an order of adjudication be passed vesting all the property of the respondents in the Official Assignee for payment of debts owed to the petitioner;
(c) Costs;
(d) Further order or orders and/or direction or directions be given as to this Hon'ble Court may seem fit and proper.
2. Needless to mention, the said Notice of Motion was supported by an affidavit affirmed on 24 June 2003 by one V. C. Deo, Deputy Manager (Legal) of SICOM. According to SICOM both the said Notice of Motion and the said supporting affidavit were served upon the debtors.
3. However, when the above was first moved in Court on 8 July 2003, Justice Narayan Chandra Sil (as his Lordship then was) made the following order :-
"The learned Advocate for the petitioner is present. He has filed a Notice of Motion before this Court and prays that he may be given a further opportunity to cause service of notice upon the respondents/debtors. The prayer is, thus, allowed. The learned Advocate for the petitioner is directed to serve a notice afresh upon the respondents and file affidavit of service on 21 July 2003. The learned Advocate for the petitioner further prays that there is some typographical mistake in the cause title of the petition and he may be permitted to correct the same. The prayer is also allowed. The learned Advocate for the petitioner is permitted to make the necessary correction here and now. Let this matter appear in the list on 22 July 2003. All parties are to act on a signed copy of the minutes of this order on the usual undertaking."
4. Again, on 13 August 2003 Justice N. C. Sil was pleased to pass the following order :-
"The Court :- The learned Advocate for the petitioner is present. The learned Advocate for the petitioner has filed affidavit of service which be kept with the record.
I have perused the affidavit of service filed by the learned Advocate for the petitioner/creditor. As a matter of better precaution, the learned Advocate for the petitioner is once again directed to cause service of notice upon the debtors/respondents within a period of 2 (two) weeks from date by Speed Post intimating the date fixed by this Court for hearing of the case.
Let this matter appear on 29 August 2003 under the heading of "To Be Mentioned.".
All parties are to act on a signed copy of the minutes of this order on the usual undertaking."
5. It appears from a letter dated 20 August 2003 of the learned Advocate on record of SICOM, annexed to the affidavit of service of one Sukumar Dhali affirmed by him on 29 August 2003, addressed to one Mr. D. K. Sarogi, authorized signatory of Appu Industries Ltd., 1/1A, Upperwood Street, Calcutta-700 071, that on 13 August 2003 the said learned Advocate Sukanta Dutta informed the said Sarogi that since the above matter would be taken up by the "Hon'ble Court", again on 29 August 2003, if the debtors chose to appear on the said date either in person or through their authorized persons then the papers that were sought for by the said Sarogi in Sarogi's letter dated 11 June 2003 which papers were also sought to be served upon the debtors, would be made available and the Counsel for the petitioner had given an undertaking to the Court to that effect as well. It was further pointed out in the said letter that the debtors had so far avoided "all processes of and proceedings before the Court". Should the debtors choose not to appear then the petitioner would pray for an ex parte hearing of the matter and would make such other prayers as it might deem fit.
6. Then, it appears from the affidavit of service jointly affirmed by one Semir Kr. Dey, a sheriff's bailee and the said Sukumar Dhali, an emplo
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