A creditor cannot pursue a suit against an insolvent without court leave if the claim doesn't relate directly to the insolvent's properties.

1. The applicant, who claims to be the creditor of the insolvents, has preferred the Notice of Motion No.14 of 2021 in Insolvenc Petition No. 21 of 2019 under section 17 of the Presidenc and Towns Insolvenc Act, 1909 (“the Act, 1909”) seeking leave to continue, pursue and prosecute the Suit No.181 of 2017, and implead the Offcial Assignee, as part defendant in the said Suit No. 181 of 2017 on behalf of the insolvent (defendant No.2 therein), as the assignee of insolvent’s properties and assets.

2. Notice of Motion No. 15 of 2021 in Insolvenc Petition No. 22 of 2019 is taken out with identical averments against Pujit Ravikiran Aggarwal, the debtor in Insolvenc Petition No.22 of 2019, who was also adjudged insolvent b a common judgment and order dated 26th Ma 2020.

3. The facts necessar for determination of these Notices of Motion can be summarized as under :

3.1 The applicant has instituted the Suit being Suit No. 181 of 2017 in this Court against (i) Orbit Corporation Limited (now in- liquidation), (ii) Ravikiran Aggarwal (the Debtor who is now adjudged insolvent), and (iii) Pujit Ravikiran Aggarwal (who also is now adjudged insolvent) seeking, inter-alia, a declaration that the Memorandum of Understanding dated 29th December 2010, executed b the above-named defendants, is a valid, subsisting and binding contract, and, a direction that the above-named defendants be ordered to specifcall perform the contract contained in the the Memorandum of Understanding dated 29th December 2010 (“suit agreement”), and, in the alternative, the defendants be ordered to pa to the applicant a sum of Rs.50,00,00,000/- towards damages alongwith interest.

3.2 In the said Suit No. 181 of 2017, in the Notice of Motion No.518 of 2017 taken out b the applicant, interim orders were passed on 15th March 2017 directing, inter-alia, not to create an third part rights in respect of the project ‘Orbit Laburnum’ and in the event an amount is received from an of the purchasers, the same shall be deposited in a separate account.

3.3 During the pendenc of the said Notice of Motion, the defendant No.1 therein, Orbit Corporation Limited was ordered to be wound up b an order dated 12th April 2018 in Compan Petition No. 593 of 2015. The applicant/plaintiff sought leave under section 446 of the Companies Act, 1956 to pursue and prosecute the said Suit No.181 of 2017 and has since been granted necessar leave under section 446 of the Companies Act.

3.4 In the meanwhile, the debtor-Ravikiran Aggarwal, who has been impleaded as defendant No.2 in the said suit, was adjudged insolvent in Insolvenc Petition No. 21 of 2021 b an order dated 26th Ma 2020. The Offcial Assignee is appointed to the properties of the insolvents wherever situate and directed to take steps in insolvenc including realisation of properties and making of investments.

3.5 The applicant avers that the applicant is constrained to take out Notice of Motion No. 14 of 2021 as the applicant desires to pursue and prosecute the said Suit No.181 of 2017 against Ravikiran Aggarwal-the debtor-insolvent (defendant No.2) as the plaintiff had entered into the suit agreement therein to acquire a duplex fat in the project of the defendant No.1-Compan (now in liquidation),bu which is an entit controlled b Ravikiran Aggarwal (defendant No.2) and Pujit Aggarwal (defendant No.3). The defendant No.1-Compan (now in-liquidation) is nothing but an alter-ego of the above-named insolvents (defendant Nos.2 and 3) and, as such, the are as much a part to the suit agreement as the defendant No.1-Compan (now in-liquidation) and, therefore, the defendant Nos.2 and 3 are bound b the suit agreement jointl and seve