1. A petition was filed by the petitioner before the Sub Court, under Section 7 and 9 of the Kerala Insolvency Act (‘the Act’, for short), for adjudging him as an insolvent. In the said petition, an interlocutory application was also filed by petitioner to stay the order of arrest issued against him by the same court in an Execution Petition. After hearing both sides, the Sub Court dismissed the interlocutory application and the said order is challenged in this petition.

2. According to petitioner, he has no sufficient means to pay the debt due to respondent, but the Sub Court issued a warrant of arrest against him in an Execution petition. Having filed a petition under Section 7 of the Act, the court below ought to have adjudicated the matter and pending disposal of the Insolvency Petition, a stay of the arrest ought to have been granted, it is contended. A mere pleading that petitioner is not having means is sufficient to entertain the Insolvency Petition but, the court below failed to consider this aspect and refused to grant a stay and dismissed the petition for stay and hence, this petition is filed to set aside the said order.

3. Heard both sides. The maintainability of the Insolvency Petition itself is challenged in this petition. Learned counsel for respondent argued that in the light of the various provisions contained in the Act and also on the facts of this case, the Insolvency Petition filed by petitioner before the court below is not maintainable. Learned Counsel appearing for petitioner, argued that all the requirements of law for filing an Insolvency Petition are satisfied in this case and hence, the Insolvency Petition cannot be treated as not maintainable.

4. Learned Counsel for petitioner also argued that as per Section 13 of the Act, a mere pleading that petitioner has no means by itself is sufficient to entertain the Insolvency Petition and there is such a pleading in the petition. It is also submitted that there is absolutely no document to show that petitioner is having any means to pay the debt. Therefore, petitioner has every chance to succeed in the insolvency petition and court below ought to have granted an interim order staying the arrest ordered in the Execution Petition, it is argued.

5. Learned counsel for respondent argued that it is not correct to say that there is no document to prove that petitioner is not unable to pay the debt. In the Execution Petition filed against petitioner, the very same court which passed impugned order entered a finding as per Ext.R(d)-order that petitioner has sufficient means to pay off the debt. The said order was challenged by petitioner before this Court in C.R.P. No.303 of 2010 and the order of the Executing Court was upheld by this court, as per order dated 27.7.2010 in the said C.R.P., as per the order, Ext.R(e). The petitioner has not challenged the said order and it has become final. Therefore, petitioner has not fulfilled the condition in Section 10(1), which enables him to file a petition, it is argued.

6. On hearing both sides and on going through the documents and records, I find that the question of maintainability of the Insolvency Petition has to be considered first. Section 7 of the Act lays down that if a debtor commits an act of insolvency, an insolvency petition may be presented and the Court may pass an order of adjudication, adjudging him an insolvent. As per Explanation to Section 7, the presentation of a petition by the debtor shall be deemed an act of insolvency within the meaning of this section. Though it may appear on a first blush that a mere filing of petition is sufficient to entertain an insolvency petition and adjudicate petitioner as insolvent, it may not be so, for the following reasons.

7. The expression “Subject to the conditions specified in this Act” in Section 7 makes it clear that whatever is contained in Section 7 is subject to the other provisions of the Act. Section 10(1) lays down that a debtor shall not be e