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1 - 10 of 21 (0.28 seconds)Section 6 in The Provincial Insolvency Act, 1920 [Entire Act]
The Negotiable Instruments Act, 1881
Section 7 in The Provincial Insolvency Act, 1920 [Entire Act]
Section 80 in The Provincial Insolvency Act, 1920 [Entire Act]
The Provincial Insolvency Act, 1920
Popat And Kotecha Property vs State Bank Of India Staff Association on 29 August, 2005
[16]. On the other hand, learned counsel for the respondent
submitted that at the stage of invoking provision of Order 7 Rule
11 CPC, the Court has to see only the averments made in the
plaint/petition. Plaint/petition has contained all the averments and
cause of action has been duly disclosed. By referring to para
No.14 of the plaint/petition, learned counsel submitted that the
debtor incurred total liability of more than Rs.7.78 crores whereas
his assets were worth Rs.27 lacs. He was unable to discharge his
debts qua the creditors. The instructions issued by the debtor in
respect of "Stop Payment of Cheque" would entail any further
communication by the banker to the collecting bank and in this
way, the information would be travelled down to the creditor and it
would be a notice falling under Section 6(1) (g) of the Act.
[17]. Learned counsel relied upon Mayar (H.K) Ltd. and
others Vs. Owners and Parties, Vessel M.V. Fortune Express
and others, AIR 2006 SC 1828, Ram Parkash Gupta Vs. Rajiv
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Kumar Gupta and others, 2007(4) RCR (Civil) 605, Ramesh B.
Desai and others Vs. Bipin Vadilal Mehta and others, AIR
2006 SC 3672, Prem Lala Nahata and others Vs. Chandi
Prasad Sikaria, CA No.446 of 2007, Popat and Kotecha
Property Vs. SBI Staff Association, (2005) 7 SCC 510, Kamala
and others Vs. K.T. Eshwara Sa and others, AIR 2008 SC
3174, Lakhi Prasad Singhania and another Vs. Ugrah Mishra
and others, AIR 1933 Patna 461, Banarsi Das-Kapur Chand
Vs. Maman Chand-Radha Kishan, AIR 1933 Lahore 113, C
Natrajan Vs. Ashim Bai and another, AIR 2008 SC 363, P.V.
Guru Raj Reddy and others Vs. P. Neeradha Reddy and
others, (2015) SCC 331, Hardesh Ores Pvt. Ltd. Vs. Hede and
Company, 2007(7) Scale 348 and contended that the plaint
cannot be rejected on the basis of allegations made in the written
statement or in an application for rejection of the plaint. The Court
has to read the entire plaint to find out that whether it discloses a
cause of action and if it does, then the plaint cannot be rejected
by the Court under Order 7 Rule 11 CPC. Whether the plaint
discloses a cause of action, is a question of fact which has to be
gathered on the basis of the averments made in the plaint in its
entirety taking those averments to be correct. A cause of action is
a bundle of facts which are required to be proved for obtaining
relief and for the said purpose, the material facts are required to
be stated but not the evidence except in certain cases where the
pleadings relied on are in regard to misrepresentation, fraud,
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willful default, undue influence or of the same nature. So long as
the plaint discloses some cause of action which requires
determination by the Court, mere fact that in the opinion of the
judge the plaintiff may not succeed cannot be a ground for
rejection of the plaint. Few lines or passage should not be read in
isolation and the pleadings have to be read as a whole to
ascertain its true import. Disputed questions cannot be decided at
the time of consideration of application under Order 7 Rule 11
CPC. The statement of facts given in the plaint has to be
considered without addition or subtraction. Order 7 Rule 11(d)
speaks of the suit being "barred by any law". Bar means, a plea
arresting a law suit or legal claim. It means to prevent by legal
objection and to exclude from consideration. Plea of mis-joinder
of parties or mis-joinder of causes of action is not the ground to
hold the petition to be barred by any law within the meaning of
Order 7 Rule 11(d) CPC. The Court is still competent to try and
decide the suit, though the Court may also be competent to tell
the plaintiffs either to elect to proceed at the instance of one of
the plaintiff or to proceed with one of the causes of action. On the
scheme of the Code of Civil Procedure, it cannot therefore be
held that a suit barred for mis-joinder of parties or of causes of
action is barred by a law. This may be contrasted with the failure
to comply with Section 80 of the Code, where the notice under
Section 80 of the Code is mandatory and non-compliance thereof
would lead to rejection of the plaint. Therefore by no stretch of
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imagination the plea of mis-joinder of parties or mis-joinder of
causes of action would be taken to be the ground for holding the
suit to be barred by any law within the meaning of Order 7 Rule
11(d) CPC.
Kamala & Ors vs K.T. Eshwara Sa & Ors on 29 April, 2008
[16]. On the other hand, learned counsel for the respondent
submitted that at the stage of invoking provision of Order 7 Rule
11 CPC, the Court has to see only the averments made in the
plaint/petition. Plaint/petition has contained all the averments and
cause of action has been duly disclosed. By referring to para
No.14 of the plaint/petition, learned counsel submitted that the
debtor incurred total liability of more than Rs.7.78 crores whereas
his assets were worth Rs.27 lacs. He was unable to discharge his
debts qua the creditors. The instructions issued by the debtor in
respect of "Stop Payment of Cheque" would entail any further
communication by the banker to the collecting bank and in this
way, the information would be travelled down to the creditor and it
would be a notice falling under Section 6(1) (g) of the Act.
[17]. Learned counsel relied upon Mayar (H.K) Ltd. and
others Vs. Owners and Parties, Vessel M.V. Fortune Express
and others, AIR 2006 SC 1828, Ram Parkash Gupta Vs. Rajiv
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Kumar Gupta and others, 2007(4) RCR (Civil) 605, Ramesh B.
Desai and others Vs. Bipin Vadilal Mehta and others, AIR
2006 SC 3672, Prem Lala Nahata and others Vs. Chandi
Prasad Sikaria, CA No.446 of 2007, Popat and Kotecha
Property Vs. SBI Staff Association, (2005) 7 SCC 510, Kamala
and others Vs. K.T. Eshwara Sa and others, AIR 2008 SC
3174, Lakhi Prasad Singhania and another Vs. Ugrah Mishra
and others, AIR 1933 Patna 461, Banarsi Das-Kapur Chand
Vs. Maman Chand-Radha Kishan, AIR 1933 Lahore 113, C
Natrajan Vs. Ashim Bai and another, AIR 2008 SC 363, P.V.
Guru Raj Reddy and others Vs. P. Neeradha Reddy and
others, (2015) SCC 331, Hardesh Ores Pvt. Ltd. Vs. Hede and
Company, 2007(7) Scale 348 and contended that the plaint
cannot be rejected on the basis of allegations made in the written
statement or in an application for rejection of the plaint. The Court
has to read the entire plaint to find out that whether it discloses a
cause of action and if it does, then the plaint cannot be rejected
by the Court under Order 7 Rule 11 CPC. Whether the plaint
discloses a cause of action, is a question of fact which has to be
gathered on the basis of the averments made in the plaint in its
entirety taking those averments to be correct. A cause of action is
a bundle of facts which are required to be proved for obtaining
relief and for the said purpose, the material facts are required to
be stated but not the evidence except in certain cases where the
pleadings relied on are in regard to misrepresentation, fraud,
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willful default, undue influence or of the same nature. So long as
the plaint discloses some cause of action which requires
determination by the Court, mere fact that in the opinion of the
judge the plaintiff may not succeed cannot be a ground for
rejection of the plaint. Few lines or passage should not be read in
isolation and the pleadings have to be read as a whole to
ascertain its true import. Disputed questions cannot be decided at
the time of consideration of application under Order 7 Rule 11
CPC. The statement of facts given in the plaint has to be
considered without addition or subtraction. Order 7 Rule 11(d)
speaks of the suit being "barred by any law". Bar means, a plea
arresting a law suit or legal claim. It means to prevent by legal
objection and to exclude from consideration. Plea of mis-joinder
of parties or mis-joinder of causes of action is not the ground to
hold the petition to be barred by any law within the meaning of
Order 7 Rule 11(d) CPC. The Court is still competent to try and
decide the suit, though the Court may also be competent to tell
the plaintiffs either to elect to proceed at the instance of one of
the plaintiff or to proceed with one of the causes of action. On the
scheme of the Code of Civil Procedure, it cannot therefore be
held that a suit barred for mis-joinder of parties or of causes of
action is barred by a law. This may be contrasted with the failure
to comply with Section 80 of the Code, where the notice under
Section 80 of the Code is mandatory and non-compliance thereof
would lead to rejection of the plaint. Therefore by no stretch of
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imagination the plea of mis-joinder of parties or mis-joinder of
causes of action would be taken to be the ground for holding the
suit to be barred by any law within the meaning of Order 7 Rule
11(d) CPC.
P.V. Guru Raj Reddy & Anr vs P. Neeradha Reddy & Ors on 13 February, 2015
[16]. On the other hand, learned counsel for the respondent
submitted that at the stage of invoking provision of Order 7 Rule
11 CPC, the Court has to see only the averments made in the
plaint/petition. Plaint/petition has contained all the averments and
cause of action has been duly disclosed. By referring to para
No.14 of the plaint/petition, learned counsel submitted that the
debtor incurred total liability of more than Rs.7.78 crores whereas
his assets were worth Rs.27 lacs. He was unable to discharge his
debts qua the creditors. The instructions issued by the debtor in
respect of "Stop Payment of Cheque" would entail any further
communication by the banker to the collecting bank and in this
way, the information would be travelled down to the creditor and it
would be a notice falling under Section 6(1) (g) of the Act.
[17]. Learned counsel relied upon Mayar (H.K) Ltd. and
others Vs. Owners and Parties, Vessel M.V. Fortune Express
and others, AIR 2006 SC 1828, Ram Parkash Gupta Vs. Rajiv
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Kumar Gupta and others, 2007(4) RCR (Civil) 605, Ramesh B.
Desai and others Vs. Bipin Vadilal Mehta and others, AIR
2006 SC 3672, Prem Lala Nahata and others Vs. Chandi
Prasad Sikaria, CA No.446 of 2007, Popat and Kotecha
Property Vs. SBI Staff Association, (2005) 7 SCC 510, Kamala
and others Vs. K.T. Eshwara Sa and others, AIR 2008 SC
3174, Lakhi Prasad Singhania and another Vs. Ugrah Mishra
and others, AIR 1933 Patna 461, Banarsi Das-Kapur Chand
Vs. Maman Chand-Radha Kishan, AIR 1933 Lahore 113, C
Natrajan Vs. Ashim Bai and another, AIR 2008 SC 363, P.V.
Guru Raj Reddy and others Vs. P. Neeradha Reddy and
others, (2015) SCC 331, Hardesh Ores Pvt. Ltd. Vs. Hede and
Company, 2007(7) Scale 348 and contended that the plaint
cannot be rejected on the basis of allegations made in the written
statement or in an application for rejection of the plaint. The Court
has to read the entire plaint to find out that whether it discloses a
cause of action and if it does, then the plaint cannot be rejected
by the Court under Order 7 Rule 11 CPC. Whether the plaint
discloses a cause of action, is a question of fact which has to be
gathered on the basis of the averments made in the plaint in its
entirety taking those averments to be correct. A cause of action is
a bundle of facts which are required to be proved for obtaining
relief and for the said purpose, the material facts are required to
be stated but not the evidence except in certain cases where the
pleadings relied on are in regard to misrepresentation, fraud,
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willful default, undue influence or of the same nature. So long as
the plaint discloses some cause of action which requires
determination by the Court, mere fact that in the opinion of the
judge the plaintiff may not succeed cannot be a ground for
rejection of the plaint. Few lines or passage should not be read in
isolation and the pleadings have to be read as a whole to
ascertain its true import. Disputed questions cannot be decided at
the time of consideration of application under Order 7 Rule 11
CPC. The statement of facts given in the plaint has to be
considered without addition or subtraction. Order 7 Rule 11(d)
speaks of the suit being "barred by any law". Bar means, a plea
arresting a law suit or legal claim. It means to prevent by legal
objection and to exclude from consideration. Plea of mis-joinder
of parties or mis-joinder of causes of action is not the ground to
hold the petition to be barred by any law within the meaning of
Order 7 Rule 11(d) CPC. The Court is still competent to try and
decide the suit, though the Court may also be competent to tell
the plaintiffs either to elect to proceed at the instance of one of
the plaintiff or to proceed with one of the causes of action. On the
scheme of the Code of Civil Procedure, it cannot therefore be
held that a suit barred for mis-joinder of parties or of causes of
action is barred by a law. This may be contrasted with the failure
to comply with Section 80 of the Code, where the notice under
Section 80 of the Code is mandatory and non-compliance thereof
would lead to rejection of the plaint. Therefore by no stretch of
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imagination the plea of mis-joinder of parties or mis-joinder of
causes of action would be taken to be the ground for holding the
suit to be barred by any law within the meaning of Order 7 Rule
11(d) CPC.
T. Arivandandam vs T. V. Satyapal & Another on 14 October, 1977
According to Section 25 of the Act, in the case of a petition
presented by a creditor, where the Court is not satisfied with the
proof of his right to present the petition or of the service on the
debtor of notice of the order admitting the petition, or of the
alleged act of insolvency, or is satisfied by the debtor that he is
able to pay his debts, or that for any other sufficient cause no
order ought to be made, the Court shall dismiss the petition.
[13]. Learned Senior Counsel relied upon Sukh Dayal and
another Vs. Firm Gobinda Mal Nanl Lal through L. Narinjan
Das and others, AIR 1944 Lahore 169, Narain Das Vs.
Chimman Lal and another, 1926 ILR (XLIX) 321, T.
Arivandandam Vs. T.V. Satyapal, 1977 AIR (SC) 2421, Church
of Christ Charitable Trust & Educational Charitable Society,
represented by its Chairan Vs. M/s Ponniamman Educational
Trust represented by its Chairperson/Managing Trustee,
2012(3) RCR (Civil) 811, SNP Shipping Service Pvt. Ltd. and
others Vs. World Tanker Carrier Corporation, 2000 AIR
(Bombay) 34, Surinder Mohan Vs. Pritam Kaur and another,
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2009(2) PLR 638, Class India Ltd. and another Vs. A.K.
Chopra and others, 2008 AIR (Punjab) 116, Saleem Bhai and
others Vs. State of Maharashtra and others, 2003(1) RCR
(Civil) 464 and M. Ratchaganadan Vs. M/s Kishindas
Shamadasunder by Shyam Sunder and another, 1967 AIR
(Madras) 279 and contended that the notice issued by the debtor
was not a notice as contemplated by Section 6(g) of the Act and
the same was not served by the debtor himself and the same
never amounted to suspend the payment of dues of the creditor.
The issuance of letter to one of the creditors intimating his
inability to meet the demand cannot be considered enough notice
under Section 6(g) of the Act. Notice must be deliberately given
and must amount to an intimation to the creditors that the debtor
intended to suspend the payment of his debts due to all his
creditors. Notice under Section 6(g) of the Act must be a notice in
an unambiguous, decisive form, made in a definite form of words
to a particular creditor at a definite time, that the debtor had
suspended payment of his debts and that the suspension of the
payment of debts means the entire suspension of his whole
indebtedness and a general intention to stop payment to
everybody. "Suspended payment of his debts" means the entire
suspension of his whole indebtedness or is a notice to stop
payment which of course means notice of a general intention to
stop payment to everybody. Notice to only one of the creditors
would not attract intention of the debtor qua all his creditors.