TaxTMI 
TaxTMI 
2025 (1) TMI 1838
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....Assignee to admit the claim and to release the claim amount from the estate of the Insolvent. 2. Notice of Motion No. 40 of 2019 has been filed by the Insolvent who is the sole proprietor of M/s. Anu Engineering Works seeking annulment of the adjudication dated 20th December 2016 under Section 21(1) of the Presidency Towns Insolvency Act, 1909 ("the Insolvency Act") on the ground of full payment and for consequential reliefs thereupon. 3. Mr. Kedia, learned Counsel for the Applicant in Notice of Motion No. 5 of 2022 would submit that the claimant is a sole proprietor and that pursuant to order of adjudication of insolvency dated 20th December 2016, the Applicant lodged the claim with the Official Assignee on 12th June 2017. 4. Thereafter, replies and rejoinders including sur-rejoinder came to be filed and in view of the allegations and counter allegations, the Official Assignee commenced examination-in-chief initially of the Applicant which commenced on 12th October 2017 and completed on 25th April 2018 as well as cross-examination of the Applicant by the Advocate for the Insolvent commenced on 20th July 2018 and completed on 27th August 2018. Thereafter, on 27th....
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....a would submit that when the aforesaid decisions came to be passed, the examination in chief and cross examination of the Insolvent was going on and there is no reference in the decisions that the same had retrospective effect. It is further submitted that the Insolvent himself has taken out a Notice of Motion No. 40 of 2019 for staying the examination in chief and that despite that the Insolvent has remained present for his cross-examination. Mr. Kedia would submit that the said two judgments are not applicable to the facts of this case as in the present case the Insolvent had earlier taken out Notice of Motion No. 37 of 2017 for annulment of adjudication order before this Court. However, when the said Notice of Motion came up for hearing on 4th September 2018, the Insolvent withdrew the said Notice of Motion in view of the claim filed by the Applicant with the Official Assignee. 7. Mr. Kedia would submit that the Official Assignee has passed the said order without considering the merits. That on the basis of the examination in chief and cross examination before this Court, it is proved that the contentions raised by the Insolvent that he made cash payment to the Appl....
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....ell-wisher with the Prothonotary and Senior Master on 3rd April 2017 and that the Petitioning Creditor was allowed to withdraw 80% from the said amount. That, on 7th June 2017, the Petitioning Creditor has withdrawn Rs. 15,87,595/- from the office of the Official Assignee. That, therefore, the claim of the Petitioning Creditor has been paid fully by deposit of the decretal amount by the well-wisher of the Insolvent. That, the claim made by Mr. Manoj Sukhadia, proprietor of M/s. Sai Samkit Industrie amounting to Rs. 15,72,665/- is being disputed as the claim is based only on cancelled cheques. The said claimant has not filed any suit / case to recover the said amount in any Court of law. Mr. Bhate would submit that it has been clearly recorded in the order dated 4th September 2018, which permitted withdrawal of Notice of Motion No. 37 of 2017 by the Insolvent, that unless the fresh claims are adjudicated, the question of passing any order of annulment of the order of adjudication would not arise. Mr. Bhate would submit that, therefore, until and unless the claim of the Applicant in Notice of Motion No. 5 of 2022 is adjudicated, which admittedly has not been done,....
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....the learned counsel for the parties in both these Notices of Motion and have considered their submissions. 13. It is not in dispute that the Applicant to Notice of Motion No. 40 of 2019 has been adjudicated Insolvent on 20th December 2016. That, the claim by the Applicant in Notice of Motion No. 5 of 2022 has been filed with the Official Assignee on 12th June 2017. Thereafter, as noted above, after replies, rejoinder, sur-rejoinder, examination in chief and cross examination of the Claimant as well as the Insolvent, the Official Assignee has rejected the claim by order dated 27th April 2022. The claim as can be seen from the Claim Affidavit dated 12th June 2017 is based on ten cheques. The said cheques, as can be seen from pages 5 to 8 of the said Application, are cancelled, admittedly, by the Insolvent. It has been submitted that the said cheques were issued earlier by the Insolvent as Judgment Debtor in discharge of liability for material supplied to the firm of the Insolvent. Admittedly, the claimant viz. the Applicant in Notice of Motion No. 5 of 2022 did not present the said cheques to any bank for realization but were cancelled by the Insolvent by writing th....