The Insolvency Court lacks jurisdiction to annul transactions if the debtor has not been legally adjudicated as insolvent, rendering such annulments void.

JUDGMENT :

K. MURALI SHANKAR, J.

1. These two Civil Miscellaneous Appeals are directed against the common order passed in the claim petition in E.A.No.54 of 2012 in E.A.No.1 of 2012 in E.P.NO.4 of 2010 in O.S.No.240 of 2004 and the claim petition in E.A.No.57 of 2012 in E.P.No.4 of 2010 in O.S.No.240 of 2004 on the file of I Additional District Court, Madurai. The Civil Revision Petition is directed against the order passed in E.A.No.1 of 2012 in E.P.No.4 of 2010 in O.S.No.240 of 2004, on the file of I Additional District Court, Madurai, dated 21.12.2017, dismissing the petition filed under Order 21 Rule 95 C.P.C., for delivery of the property.

2. The factual aspects leading to the filing of the present appeals and the revision are as follows:

For the sake of convenience and brevity, the parties will hereinafter be referred as per their status/ranking before the Executing Court.

(a) The properties comprised in Survey No.2787/1A and the building bearing Door No.9B at Vallabai road, Madurai Town originally belonged to one Mrs.Saroja and her sons Mohan, Nirmal Kumar and Viswanath. They have partitioned their common properties on 27.02.1995 and the same was subsequently confirmed by a partition list dated 27.03.1995. In Ex.B.2 – rough sketch marked in E.A.No.57 of 2012, the portion shown as ABCDHIA was alloted to the said Viswanath and the portion shown as HDEFG was allotted to the said Saroja. The said Viswanath through his Power of Attorney – P.Nataraj (3^rd Respondent) sold his property ABCI to one S.Mohandoss and his wife Dakshayini, vide two sale deeds dated 12.11.1999, who in turn sold the same to Selvi Joy Jayantha vide two sale deeds dated 13.06.2001 and 21.06.2001. The said Selvi Joy Jayantha through his power of attorney S.Raviraj sold the said property to the claim petitioner Dr.J.Kannaperuman vide sale deed dated 01.12.2006. The said Viswanath sold his remaining property ICDH to one P.Kalyanasundaram vide sale deed dated 24.11.1999, who in turn sold the same to the claim petitioner in E.A.No.57 of 2012 - Sigappi. The claim petitioner Sigappi has also purchased the portion shown as HDEFG from Viswanath's mother Saroja, vide sale deed dated 16.03.2000.

(b) The first respondent in both claim petitions – M.Kamaraj entered into a sale agreement with the said Viswanath on 19.06.1997 in respect of 19 cents of land and he had paid an advance of Rupees Five Lakhs on the date of agreement. Since the said second respondent- Viswanath pleaded his inability to conclude the same on the ground that that was opposed by his family members and also lodging of criminal complant against the said Kamaraj, the said Kamaraj and Viswanath have agreed to give up the sale agreement and the said second respondent Viswanath agreed to pay the advance amount with interest at the rate of 24% p.a., within six months from 01.12.1999. Since the said second respondent – Viswanath has failed to pay the said amount as agreed, the first respondent Kamaraj has filed a suit in O.S.No.240 of 2004 for recovery of Rs.5,75,000/- with interest and costs against the said second respondent-Viswanath and his Power of Attorney Nataraj, on the file of the Subordinate Court, Madurai. The first respondent Kamaraj has also filed an application seeking attachment before judgment of the property now in dispute and the learned Subordinate Court has directed the said second respondent Viswanath to furnish security.