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2017 Supreme(Mad) 2641

IN THE HIGH COURT OF JUDICATURE AT MADRAS
RAJIV SHAKDHER, ABDUL QUDDHOSE, JJ.
K.I. Sudhir Mathulla - Appellant
Versus
D. Rajkumar alias Raju & Ors. - Respondents
O.S.A.Nos.146 to 149 of 2013, M.P.No.1 of 2013
Decided On : 13-07-2017

Advocates Appeared:
For the Appellant : Mr. M.S. Krishnan, S.C., M/s. Sarvabhauman Associates
For the Respondents: Ms. B. Meena, Official Assignee, Mr. M. Vasantha Kumar, Deputy Official Assignee

Headnote:

Presidency Towns Insolvency Act, 1909 - Section 57,21,21(1) and 14(2) - Provincial Insolvency Act, 1920 - Section 35 - appeals have been preferred against four (4) separate orders, of even date, passed by learned Single Judge in Application No.55 , Application No.88 Application No.89 and Application No.90 of - Appellant, claims to be a third party, bona fide purchaser of an immovable property, (hereinafter referred to as ‘subject property’) - Subject property, prior to his declaration, as an insolvent - It is this declaration of respondent No.1, as an insolvent, which, affects the interest of appellant. Appellant, faced with this hurdle, chose to file the aforementioned application - It is, therefore, dismissal of the appellant’s applications, by learned Single Judge, which has propelled him to file captioned appeals – Held, learned Senior Counsel, who appears on behalf of the appellant, in support of appeals, submits that orders passed by learned Single Judge are erroneous in law, in as much as the appellant, who claims to be the bona fide purchaser of the subject property, had the necessary locus to challenge the adjudication order - Court has been vested with power to annul an adjudication order, if, it is of the opinion that debtor ought not to have been adjudged an insolvent or where it is proved to the satisfaction of Court that debts of the insolvent are paid in full - Learned Single Judge, however, it seems short-circuited entire process by non-suiting the appellant on the ground of locus standi - Therefore, in Court view, order passed by learned Single Judge in Application No.55 would have to be set aside - Logical sequitur, would be that impugned order passed qua the other three (3) applications, i.e., Application Nos.88, 89 and 90 would also have to be set aside - It is ordered accordingly - In sum, we allow the captioned appeals and set aside the impugned orders - Appellant would have to, inter alia, prove he was a bona fide purchaser who had no notice of the presentation of insolvency petition by the debtor - Consequently, connected Miscellaneous Petition is closed.

JUDGMENT :

RAJIV SHAKDHER, J.

1. These appeals have been preferred against four (4) separate orders, of even date, i.e., 14.11.2011, passed by the learned Single Judge in Application No.55 of 2010, Application No.88 of 2010, Application No.89 of 2010 and Application No.90 of 2010.

1.1. The appellant, claims to be a third party, bona fide purchaser of an immovable property, situate at Plot No.66, Pillayar Koil Street, Golden George Nagar, Nerkundram, Chennai - 600 107 (hereinafter referred to as ‘subject property’).

1.2. Respondent No.1, Mr. D. Rajkumar, had held title, in the subject property, prior to his declaration, as an insolvent. It is this declaration of respondent No.1, as an insolvent, which, affects the interest of the appellant. The appellant, faced with this hurdle, chose to file the aforementioned applications. It is, therefore, the dismissal of the appellant’s applications, by the learned Single Judge, which has propelled him to file the captioned appeals.

1.3. It is, important to note, that, the learned Single Judge dismissed Application No.55 of 2010, on the ground that the appellant had no locus standi to challenge the order dated 06.06.2006, whereby, respondent No.1, was declared an insolvent.

1.4. The necessary consequences of the dismissal of Application No.55 of 2010, was that, other three (3) applications, were dismissed by the learned Single Judge as well, albeit, in limine.

1.5. The appellant, thus, assails the impugned orders, essentially, on the ground that conclusions reached by the learned Single Judge that he had no locus, in the matter, was flawed.

2. The factual background, in which, these assertions are made is set out hereinafter.

2.1. Respondent No.1, i.e., Mr. D. Rajkumar, moved, for being declared an insolvent, by filing a petition, on 12.05.2006. The subject property was sold by respondent No.1 to the appellant on 18.05.2006. Respondent No.1 was declared an insolvent, as indicated above, after adjudication, on 06.06.2006.

2.2. The Official Assignee filed an application, i.e., Application No.95 of 2009 for annulling the sale effected, between the appellant and respondent No.1, on 18.05.2006.

2.3. We are told, that the Official Assignee’s application, i.e., Application No.95 of 2009 is still pending adjudication.

4. Since, the appellant’s applications qua which the impugned orders have been passed, came up for hearing before the learned Single Judge, they were heard and dealt with via the impugned orders.

5. Mr. M.S. Krishnan, learned Senior Counsel, who appears on behalf of the appellant, in support of the appeals, submits that the orders passed by the learned Single Judge are erroneous in law, in as much as the appellant, who claims to be the bona fide purchaser of the subject property, had the necessary locus to challenge the adjudication order.

5.1. Learned Senior Counsel further submits that, since, the sale of the subject property took place before the order of adjudication was passed, he would come within the ambit of Section 57 of the Presidency Towns Insolvency Act, 1909 (in short, ‘the 1909 Act’).

5.2. In support of his submission, learned Senior Counsel relies upon Section 21 of the 1909 Act, as well. Based on the said provision, learned Senior Counsel submitted that any person, who is aggrieved, could move the Court for setting aside the adjudication order. In support of his submissions, learned Senior Counsel relied upon the judgment of the Supreme Court in: Sankarram & Co. Vs. Kasi Naicker and others, (2003) 11 SCC 699. Reliance was also placed by the Counsel on the judgment of this Court in the matter of Govindaraja Gounder (died) and others V. Rani, 78 L.W. 715.

6. Ms. B. Meena, Official Assignee and Mr. M. Vasantha Kumar, Deputy Official Assignee, submit that the subject sale transaction which was entered into between the appellant and respondent No.1 was fraudulent. In this behalf, it was contended that the purported sale consideration of the subject property was Rs.17,16,000/-, whereas, at










































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