Advocates:
['M/S CKM APPAJI', '', 'D YESA', 'M/S M GANESHAN', '', 'N ELAYARAJA', 'N SIVA KARTHICK']

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 17.02.2011

CORAM

THE HON'BLE MRS. JUSTICE R.BANUMATHI

and

THE HON'BLE MR. JUSTICE M.M.SUNDRESH

O.S.A.NO.413 OF 2010

Prabhakaran

.. Appellant/Applicant

Vs.

1.V.Rajendran

2.The Official Assignee

Office of Official Assignee

High Court Campus,

Chennai – 15.

.. Respondents/Respondents

Prayer: Original Side Appeal filed under Order 36 Rule 11 of

Original Side Rules read with Clause 15 of Letters Patent against the

order dated 1.11.2010 in Application No.355 of 2010 in I.P.No.95 of

2009 on the file of this Court.

For appellant

: Mr.C.K.M.Appaji

For respondents : Mr.M.Ganesan for R1

Mr.Sitrarasu,

Official Assignee for R2

JUDGMENT

(Judgment of the Court was delivered by R.BANUMATHI, J.)

This appeal arises out of the order dated 01.11.2010 in

Application No.355 of 2010 in I.P.No.95 of 2009 on the file of this

Court, whereby the learned single Judge has ordered attachment of 50

percent of appellant's salary.

2. Case of first respondent/petitioning creditor is that

appellant was running chits and requested the first respondent to

join his chit as one of the subscribers. Believing the words of

appellant and considering that he is working as a Central Government

employee, the first respondent joined one Rs.2 lakhs chit and one

Rs.1 lakh chit. The first respondent was declared as Prized

subscriber in respect of the above two chits. The appellant had

postponed the repayment of the prized amount. Upon demand of the

first respondent, the appellant had issued cheque for a sum of

Rs.80,00,000/- dated 27.7.2005 bearing Cheque No.979055 drawn at

Indian Bank, Velachery Branch, Chennai. On the same day, the

appellant had also executed a demand promissory note for a sum of

Rs.2 lakhs dated 27.5.2005 agreeing to repay on demand with interest

https://hcservices.ecourts.gov.in/hcservices/

at the rate of 24 percent per annum. Case of first respondent is that

inspite of several requests made by him for repayment of the chit

amount, the appellant failed to pay the prized chit amount. The

first respondent filed O.S.No.1594 of 2008 on the file of the 4^th

Assistant Judge, City Civil Court, Chennai. After contest, the said

suit was decreed in favour of the first respondent on 08.07.2008

directing the appellant to pay a sum of Rs.4,53,600/- together with

interest at 24% per annum on the suit claim of Rs.2,80,000/- from the

date of plaint till date of realisatlion and further sum of

Rs.35,038/- towards costs. Further case of first respondent is that

even after decree has been passed in the said suit, appellant failed

to pay the decree amount and therefore, the first respondent filed

Insolvency Notice No.87 of 2008 under Section 9(2) of P.T.I. Act

stating that the appellant has committed an act of insolvency. In

the Insolvency Petition, the appellant did not appear and by the

order dated 15.03.2010 made in I.P.No.95 of 2009, the appellant was

declared as insolvent and the Official Assignee was directed to take

over the assets of the insolvent and administer the estate of the

insolvent in a regular manner for the benefit of creditor.

3. Being aggrieved by the exparte order of insolvency passed

in I.P.No.95 of 2009, the appellant has filed application – A.No.355

of 2010 on the ground that the first respondent has obtained the

order in I.P.No.95 of 2009 by suppression of material facts. The

appellant also alleged that due to sudden illness, he could not

appear in the Insolvency Petition and give instructions to his

counsel and prayed to set aside the exparte order dated 15.03.2010.

4. In the said application, pay slip of the appellant was

produced to the effect that his gross salary is Rs.45,273/- per month

and after deductions his take home salary is Rs.28,518/- per month.

Pointing out th