The burden of proving the contrary in insolvency proceedings is on the debtor, and the legal provisions create a presumption that the debtor has committed an act of insolvency if he fails to comply with the insolvency notice or if his attempt to set aside the notice is rejected.

ORDER :

This Insolvency Petition has been filed under Section 9(2), 10, 11, 12, 13 of the Presidency Towns Insolvency Act, seeking adjudication of the respondent as an Insolvent on the ground of his inability to pay a decreetal debt after having served notice of insolvency on the respondent. The attempt of the respondent to have the insolvency notice in I.N.No.9 of 2009 served on him on 13.03.2009, set aside failed, since the application for setting aside the insolvency notice in A.No.140 of 2009 came to be dismissed on 20.07.2009.

2. The facts leading to the filing of this Insolvency Petition are as follows:-

2.1. The predecessor in interest of the petioning creditor Sathrasala Venkatraman had laid a suit in CS.No.770 of 1997 for declaration that he is the owner of the property set out in the Schedule 'A' to the plaint, recovery of possession, injunction restraining the defendants from either demolishing the existing construction or putting up any further construction in the suit schedule property, for damages of Rs.15,00,000/-, for accounts and for return of articles or in the alternative for payment of Rs.1,00,000/- with interest at 12% p.a. The said suit came to be decreed exparte by this Court on 06.07.2006. During the pendency of the suit, the sole plaintiff had died and the petitioning creditor herein was brought on record as legal representative of the sole plaintiff and ranked as second plaintiff.

2.2. The said decree apart from declaring the title of the plaintiff to the suit and directing the delivery of possession, has also directed the defendant / respondent herein to pay a sum of Rs.30,35,917.81/- as damages to the plaintiff together with interest at 12% p.a. from the date of the decree till date of realisation. The defendant filed an application seeking to set aside the exparte decree in A.S.No.3126 of 2006. An application seeking condonation of delay of 3729 days in filing the written statement was also filed. Both the said applications were dismissed by this Court on 03.07.2006. The appeals filed by the defendant against the orders dated 03.07.2006 in O.S.A.Nos.236 to 238 of 2006 were also dismissed on 02.09.2008 by the Hon'ble Division Bench.

2.3 The Special Leave Petitions filed against the common judgment in original side appeals dated 02.09.2008 were also dismissed by the Hon'ble Supreme Court on 07.11.2018. Subsequently, review petitions in Review Petition Nos.53 to 56 of 2009 filed before the Hon'ble Apex Court were also dismissed on 05.12.2009. It is at this point of time, the petitoning creditor / decree holder filed I.N.No.9 of 2009 seeking issuance of an insolvency notice to the judgment debtor / respondent herein requiring him to pay the decreed debt. The notice was issued on 02.03.2009 and the same was served on the respondent on 13.03.2009. Thereafter, the respondent filed an application in A.No.140 of 2009 seeking to set aside the insolvency notice. The said application came to be dismissed on 20.07.2009.

2.4. The respondent / judgment debtor filed an appeal in OSA.No.240 of 2009 wherein, the learned counsel appearing for the respondent herein had offered to deposit a sum of Rs.50,00,000/- in the name of the respondent, namely, the petioning creditor herein, with Indian Bank and deposit the fixed deposit receipt with the High Court without prejudice to his contentions in the exeucution petition and A.No.1213 of 2009, which was pending before the learned Master. It was also agreed that the respondent will continue to pay damages for use and occupation as per the decree.

2.5. Accepting the said submissions of the learned counsel, the Hon'ble Division Bench directed him to pay monthly damages on or before 10th of every succeeding month and also directed him to deposit a sum of Rs.50,00,000/- in fixed deposit by 12th August 2009. The fixed deposit was directed to be made initially for a period of one year with a further direction for renewal until E.P.No.511 of 2008 is disposed of. On compliance with the ab