Kerala High Court
Abdul Khader vs Abdullakutty on 4 January, 2013
Equivalent citations: 2013 AIR CC 2773 (KER), (2013) 125 ALLINDCAS 382 (KER), (2013) 1 KER LJ 466, (2013) 1 KER LT 314, (2013) 2 RECCIVR 214, (2014) 1 ICC 125, (2013) 3 CIVLJ 550
Author: A.V.Ramakrishna Pillai
Bench: Thottathil B.Radhakrishnan, A.V.Ramakrishna Pillai
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
FRIDAY, THE 4TH DAY OF JANUARY 2013/14TH POUSHA 1934
FAO.No. 355 of 2012 ()
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IP.NO.1/2002 OF SUB COURT, OTTAPPALAM
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APPELLANT/PETITIONER :
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ABDUL KHADER, AGED 50 YEARS
S/O.KUNHAPPA, POTHIYIL KUNJIAPPA
THENKARA AMSOM DESOM, MANNARKKAD TALUK
PALAKKAD DISTRICT
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER
AND SON MR.SHAREEF.
BY ADVS.SRI.K.B.ARUNKUMAR
SRI.RANJIT BABU
RESPONDENTS/RESPONDENTS :
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1. ABDULLAKUTTY
S/O.K.MAMMED, KALATHINGAL VEEDU, CHANTHAPPADI
MANNARKKAD, PALAKKAD DISTRICT, PIN-678582.
2. T.K.ABDUL RAHMAN
S/O.USMAN T.K., THACHAMKUNNATH VEEDU, KODUVALLYKUNDU
MANNARKKAD, PALAKKAD DISTRICT, PIN-678582.
3. K.P.JUNAS
S/O.K.M.PAREETHKUTTY HAJI, PUNMCHAKKODUKALAM VEEDU
THENKARA P.O., MANNARKKAD, PALAKKAD DISTRICT
PIN-678582.
4. C.H.HAMSAPPA
S/O.C.H.ALAVI, CHELAKKATTUTHODI VEEDU, MANALADI
THENKARA P.O., MANNARKKAD, PALAKKAD DISTRICT
PIN-678582.
5. P.MUHAMMED
S/O.P.KUNHAPPA, POTHIYIL VEEDU, MELMURI
PUNCHAKKODE, THENKARA P.O., MANARKKAD
PALAKKAD DISTRICT, PIN-678582.
...2/-
FAO.No. 355 of 2012 () -2-
6. MANAGER
THE PALAKKAD DISTRICT CO-OPERATIVE BANK LTD. NO.P.521
MANNARKKAD BRANCH, PALAKKAD DISTRICT, PIN-678582.
7. K.SIDHIQUE
S/O.SAITHU, KONNADAN HOUSE, PUNCHAKKAD
THENKARA P.O., MANNARKKAD, PALAKKAD DISTRICT
PIN-678582.
8. THE ACCOUNTS OFFICER
B.S.UNIT, KERALA STATE ELECTRICITY BOARD OFFICE
T.B.ROAD, PALAKKAD, PIN-678014.
9. THE ASSISTANT EXECUTIVE ENGINEER
KERALA STATE ELECTRICITY BOARD, ELECTRICAL MAJOR SECTION
MANNARKKAD, PALAKKAD DISTRICT, PIN-678528.
10. P.A.ANVAR
S/O.HAMZA, POTHIYIL VEEDU, THENKARA P.O.
MANNARKKAD DISTRICT, PALAKKAD DISTRICT, PIN-678582.
11. P.S.SIDHIQUE
S/O.SULAIMAN, MANNARKKAD P.O.
MANNARKKAD, PALAKKAD DISTRICT, PIN-678582.
12. KERALA STATE ELECTRICITY BOARD,
VYDUTHI BHAVAN, THIRUVANANTHAPURAM
PIN-695001 REPRESENTED BY ITS SECRETARY.
BY ADV. SRI.K.M.SATHYANATHA MENON, SC, K.S.E.B
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION
ON 20/12/2012, THE COURT ON 04-01-2013 DELIVERED THE FOLLOWING:
Mn
'C.R'
THOTTATHIL B. RADHAKRISHNAN &
A.V.RAMAKRISHNA PILLAI, JJ.
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F.A.O No.355 of 2012
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Dated this the 4th day of January, 2013
JUDGMENT
Ramakrishna Pillai, J.
Under challenge in this petition is the order passed by the learned Sub Judge, Ottappalam, dismissing an insolvency petition filed by the petitioner.
2. The petitioner approached the court for an order adjudging him insolvent alleging that his debts exceed his assets and he is unable to pay off the liabilities. According to him, he, who was conducting certain businesses, including a mill at Mannarkkad, became a debtor as his business ran into a debt trap. The Kerala State Electricity Board was one of the creditors who were arrayed as the respondents.
3. The learned Sub Judge, relying on Section 8 of the Provincial Insolvency Act, 1920, for short, the Act, found that the petitioner has no right to present the petition and accordingly, dismissed the same by the impugned order.
4. Arguments have been heard and the impugned order was perused.
FAO355/12 -:2:-
5. During the course of argument, we had the profit of noticing the decision of a Division Bench of this Court in Sulthan Pillai v. Municipal Commissioner [2002 (1) KLT 905] which states that an insolvency petition cannot be presented for adjudging any Corporation, Association or Company as insolvent.
6. The learned standing counsel for the respondent Board would argue persuasively that what is interdicted by Section 8 of the Act applies with equal force to all petitions filed against a Corporation, Association or Company.
7. Section 7 of the Act makes it clear that an insolvency petition can be presented either by a creditor or by a debtor, if the debtor commits an act of insolvency. However, this is subject to the conditions specified in the Act.
8. The presentation of a petition by the debtor shall be deemed as an act of insolvency within the meaning of that section. Section 8 of the Act states that no insolvency petition shall be presented against any Corporation or against any Association or Company registered under any enactment for the time being in force.
9. The logical conclusion that can be arrived at from a combined reading of these two sections is that what is interdicted FAO355/12 -:3:- by Section 8 of the Act is the petition to declare any Corporation, any Association or Company as an insolvent. Section 8 never prohibits the presentation of an application by a debtor adjudging him insolvent against such Corporation, Association or Company.
10. If the interpretation as argued by the learned standing counsel for the respondent Board is given effect to, it would defeat the very object of the statute.
11. Here, the appellant, who is unable to pay off his liability, has approached the court for adjudging him insolvent. It is true that the Kerala State Electricity Board happened to be one of the respondents. So long as the petition is not for declaring the respondent Board as insolvent, it is maintainable.
12. The conclusion arrived at by the learned Sub Judge that the petition is not maintainable in the light of Section 8 of the Insolvency Act, is far fetched and the same has to be interfered with.
13. The learned counsel for the respondents has inter alia pointed out that in the suit, the Board was not properly represented. It will be open to the appellant to make necessary amendments in the petition to put up the petition in order. FAO355/12 -:4:-
In the result, the petition is allowed. The impugned order is set aside. I.P.No.1 of 2002 is remitted back to the Sub Court, Ottappalam, for consideration after affording both sides to adduce evidence, in accordance with law. No costs.
sd/-THOTTATHIL B. RADHAKRISHNAN
JUDGE
sd/- A.V.RAMAKRISHNA PILLAI
JUDGE
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P.S.TO JUDGE