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Showing posts from July, 2015

Sec.25 of Hindu Marriage Act = even after a decree of divorce, permanent alimony can be granted to the spouse who has applied for it unless the conduct of the spouse is abominable; and that mere desertion of the spouse would not amount to abominable conduct. It is only if the conduct of the petitioner is abominable, would this Court be required to consider whether, and to what extent, such conduct would have an effect on the grant of permanent alimony. The word abominable means odious, offensive. The conduct of both the parties before, during the pendency of proceedings, and after filing the present petition is relevant. The material on record does show that the petitioner has made serious allegations against her husband. She filed a criminal case against him for the offence punishable under Section 498-A I.P.C. She also threatened to commit suicide. While her conduct is not beyond reproach, is it such as to disentitle her from being granted permanent alimony? -2015 A.P.(1977) MSKLAWREPORTS

Sec.25 of Hindu Marriage Act = even after a decree of divorce, permanent alimony can be granted to the spouse who has applied for it unless the conduct of the spouse is abominable; and that mere desertion of the spouse would not amount to abominable conduct. It is only if the conduct of the petitioner is abominable, would this Court be required to consider whether, and to what extent, such conduct would have an effect on the grant of permanent alimony. The word abominable means odious, offensive. The conduct of both the parties before, during the pendency of proceedings, and after filing the present petition is relevant. The material on record does show that the petitioner has made serious allegations against her husband. She filed a criminal case against him for the offence punishable under Section 498-A I.P.C. She also threatened to commit suicide. While her conduct is not beyond reproach, is it such as to disentitle her from being granted permanent alimony? -2015 A.P.(1977) MSKLAW…

Mere payment of fine - Employment

summary trial proceedings and what had the appellant pleaded to as guilty, whether to the allegations in the FIR or to the provision of the IPC or any other particular? Mere payment of fine of Rs.20/- does not go to show that the conviction was validly and legally recorded. Assuming that the conviction is not open to challenge at the present juncture, we cannot but deprecate the action of the respondents in having proceeded to adversely certify the character and antecedents of the appellant on the basis of the conviction per se, opining to have involved moral turpitude, without satisfying the tests laid down in the policy decision of the government. We are rather unhappy to note that all the three courts below, even when invited to judge the matter in the said perspective, went on to hold that the act/s involved in conviction under section 294 IPC per se established moral turpitude. They should have been sensitive to the changing perspectives and concepts of morality to appreciate th…

suit for declaration without cancellation of sale deed is valid

Suit for partition  -questioning the validity and binding nature of sale deed without asking for cancellation . Partition suit without prayer for cancellation of sale deed is maintainable and the question of limitation of 3 years not applies from the date of alienation As the plaintiff is not eo nomine a party to the sale-deed, it is not necessary for him to pray for cancellation of the sale-deed and it is open for him to question the validity and binding nature of the sale-deed that the lower Court erred in holding that the suit filed for partition without a prayer for cancellation of the sale-deed is not maintainable and that the suit is also barred by limitation inasmuch as it was not filed within three years from the date of the alienation. I find force in this submission. As the plaintiff is not eo nomine a party to the sale-deed, it is not necessary for him to pray for cancellation of the sale-deed and it is open for him to question the validity and binding nature of the sale-deed…

Court fee - Sec.34 of A.P.C.F & S.V.Act - partition of Plaints-A and B-Schedule properties, in the manner pleaded by her, and for grant of future profits. Plaint-A Schedule comprised of, four items of immovable properties, and Plaint-B Schedule comprised of, nine items of jewellery. Pleading that the parties are in joint possession of the said properties, the petitioner paid Court-fee of Rs. 200/- under Sub-section (2) of Section 34 of the A.P. Court Fees and Suits Valuation Act, 1956 (for short 'the Act'). The trial Court returned the plaint, through its order dated 23-6-2006, directing the petitioner herein, to pay Court fee on movable properties, on her shares, as per the Act, within the time stipulated by it.= In the instant case, the petitioner asserted that, herself and the respondents are in joint possession of the Plaints-A and B-Schedule properties. In a way, the trial Court was satisfied, that the immovable properties mentioned in Plaint-A schedule are in joint possession, and in that view of the matter, it did not insist on payment of ad-valorem Court-fee, on such items. It, however, took a different view, as regards the movable properties. Neither from the plaint, nor from the endorsement made by the trial Court, it is found that there is any distinction, as to the nature of rights claimed, in respect of Plaint-A Schedule properties, on the one hand, and Plaint-B schedule properties, on the other hand. In fact, the nature and incidence of possession, of an immovable property, gives rise to, relatively greater consequences of law, than the possession of an item of movable property. The possession of an item of immovable property can be said to be more assertive, firm and lasting, than the one, of movable property. The endorsement made by the trial Court cannot be sustained, either on law, or on facts. 2015 A.P.(2006)MSKLAWREPORTS

partition of Plaints-A and B-Schedule properties, in the manner pleaded by her, and for grant of future profits. Plaint-A Schedule comprised of, four items of immovable properties, and Plaint-B Schedule comprised of, nine items of jewellery. Pleading that the parties are in joint possession of the said properties, the petitioner paid Court-fee of Rs. 200/- under Sub-section (2) of Section 34 of the A.P. Court Fees and Suits Valuation Act, 1956 (for short 'the Act'). The trial Court returned the plaint, through its order dated 23-6-2006, directing the petitioner herein, to pay Court fee on movable properties, on her shares, as per the Act, within the time stipulated by it.= In the instant case, the petitioner asserted that, herself and the respondents are in joint possession of the Plaints-A and B-Schedule properties. In a way, the trial Court was satisfied, that the immovable properties mentioned in Plaint-A schedule are in joint possession, and in that view of the matter, it …

Suit for partition - Sec.34 of A.P.S.V.& C.F. Act - Under Section 34(2), in a suit for partition where the plaintiffs are seeking partition of suit and separate possession of the joint family properties, and if the plaintiff's are in joint possession of such property, the Court fee payable in respect of the suit for partition, where the value is over and above Rs. 10,000/-, is only Rs. 200/-. In the instant case, the plaintiff's have asserted that they are in joint possession of the properties sold by the Defendants 1 to 4 in favour of the 7th defendant. Therefore, the Court fee payable by them is only Rs. 200/-, which was already paid.

Suit for partition - Sec.34 of A.P.S.V.& C.F. Act - Under Section 34(2), in a suit for partition where the plaintiffs are seeking partition of suit and separate possession of the joint family properties, and if the plaintiff's are in joint possession of such property, the Court fee payable in respect of the suit for partition, where the value is over and above Rs. 10,000/-, is only Rs. 200/-. In the instant case, the plaintiff's have asserted that they are in joint possession of the properties sold by the Defendants 1 to 4 in favour of the 7th defendant. Therefore, the Court fee payable by them is only Rs. 200/-, which was already paid.

Rent Control Appeal - Deposit of arrears of rents is a conditional precedent under A.P.Rent Control Act - payment of rent is a condition precedent for entertaining the appeal;2015 A.P. MSKLAWREPORTS

Rent Control Appeal - Deposit of arrears of rents is a conditional precedent under A.P.Rent Control Act -  payment of rent is a condition precedent for entertaining the appeal;2015 A.P. MSKLAWREPORTS

the appellate
Court was justified in not numbering the appeal unless and until
the rent was deposited; in a case where the jural relationship of
landlord and tenant is denied, the finding given by the Rent
Controller holds good; deposit of arrears of rent, as determined by
the Rent Controller, was indispensable; and it could not be said
that the appellate Court had committed any illegality or
impropriety in rejecting the appeal in limini.  Having regard to the
facts and circumstances of the case, this Court considered it fit to
grant time to the petitioners to deposit the rents making it clear
that, in the event of the failure of the petitioners to deposit the
arrears of rent, the order, rejecting the appeal, would stand and
steps could be taken for eviction.
      It is evident from the…

Partition suit - Appreciate of evidence - whether the House was constructed by joint funds or the site and house was self acquired property of defendant ? - Trial court dismissed the claim - Appellant court expressed that the plaintiff is entitled for refund of the amount paid by plaintiff's husband - Apex court held that Therefore, the concurrent finding of fact recorded by both the trial court as well as the First Appellate Court on the contentious issue No.4 are not only erroneous in law but also suffer from error in law for the reason that there is a positive and substantive evidence elicited by the deceased-first defendant during the course of his cross examination before the trial court, the relevant portion of which is extracted above, wherein he had in unequivocal terms admitted in his evidence that he, his sons and daughters have an ancestral property in his village and the same has not been divided between them and that he used to get the income from the said agricultural land and the same was utilized by him for the construction of the building at Sant Nagar, i.e. schedule ‘B’ property. Therefore, it amounts to putting the said property in the hotchpot of joint family property. The non-consideration of the above positive and substantive evidence by the trial court as well as the First Appellate Court in justificat ion of the claim of the plaintiff in respect of the schedule ‘B’ property has rendered the concurrent finding recorded by it as erroneous in law and therefore, the same are liable to be set aside.-2015 S.C.MSKLAWREPORTS

Partition suit - Appreciate of evidence - whether the House was constructed by joint funds or the site and house was self acquired property of defendant ? - Trial court dismissed the claim - Appellant court expressed that the plaintiff is entitled for refund of the amount paid by plaintiff's husband - Apex court held that  Therefore, the concurrent finding  of  fact  recorded by both the trial court  as  well  as  the  First  Appellate  Court  on  the contentious issue No.4 are not only erroneous in law but  also  suffer  from error in law for the  reason  that  there  is  a  positive  and  substantive evidence elicited by the deceased-first defendant during the course  of  his
cross examination before the trial court, the relevant portion of  which  is extracted above, wherein  he  had  in  unequivocal  terms  admitted  in  his evidence that he, his sons and daughters have an ancestral property  in  his village and the same has not been divided between them and that he  used  to g…

Sections 420, 467, 468, 471, 120B and 201 IPC, and under Section 13 (1) (d) read with Section 13 (2) of Prevention of Corruption Act, 1988 (for Short “the Act”) - Who has to give Sanction for prosecution whether the Law Department vested with such powers - High court allowed the writ - Apex court held that it is evident that the power to grant the sanction for prosecution, already existed with the Department of Law and Legislative Affairs, since February, 1988. The circular letter dated 28.02.1998 (Annexure P-5) does not confer any new power and it only clarifies that Department of Law and Justice is a competent authority not only in respect of investigations made by Lokayukta Organization, but also the State Economic Offences Investigation Wing. The power with the appellant No.2 to grant the sanction is, in fact, conferred by the rule as amended vide notification dated 03.02.1988 published in the Official Gazette. After such amendment in the rule whereby power to grant sanction was delegated to Department of Law and Justice, it cannot said that Administrative Department had power to decline sanction as it has done vide its order dated 10.07.1997.-2015 SC MSKLAWREPORTS

It is alleged that  the  respondents,
in connivance with other accused, entered  into  a  criminal  conspiracy  in
connection with above construction work, and got  prepared  a  forged  note-
sheet, pursuant to which excess payment of Rs.  9,51,657/-  was  paid  to  a
contractor (Ashok Johri).  
On this information, Economic Offences Wing  (for
short “EOW”) of the State Government registered Crime No.  28  of   2004  in
respect of offences punishable under Sections 420, 467, 468, 471,  120B  and
201 IPC, and  under  Section  13  (1)  (d)  read  with  Section  13  (2)  of
Prevention of Corruption  Act,  1988  (for  Short  “the  Act”)  against  the
respondents  and  other  accused.  
After  investigation,  the  Wing   sought
previous sanction necessary for prosecution  of  the  respondents  from  the
Administrative Department of  the  State  Government.    
The  Administrative
Department of the State Government, after examining the papers declined  the
sanction vide  its  order  dated  08.03.2011.   H…

Sec.22, 27 of Specific Relief Act - Specific Performance of sale agreement - contingent sale agreement - it was specifically mentioned that the sale also be subject to your (defendants) being able to settle with your labour - Trial court dismissed the suit - Appellant court order for refund of amount with interest - Apex court held that The agreement for sale is a contingent agreement depending upon obtaining permission under Section 22 and Section 27 of the ULC Act, property being converted from industrial zone to residential use and settlement with the labour and the labour agreeing to the sale contemplated therein. If any of the conditions are not fulfilled, the respondents were not bound to complete the sale and the appellant was only entitled for return of the money with interest @ 18% per annum from the date of refusal of any of the permission or consent or agreement mentioned above. -2015 S.C.MSK LAW REPORTS

In
the agreement dated 19.10.1977, it was specifically mentioned that the  sale
also be subject to your (defendants) being able to settle with  your  labour
and your labour agreeing to the sale contemplated herein and if you are  not
able to settle with your labour and to get them to agree to the sale  herein
contemplated you will not be bound to complete the sale.  
The moment  labour
do not agree to the sale contemplated, under the terms of the contract,  the
respondents were not bound to complete the  sale.  
The  maximum  period  of
nine (9) months does not mean that once the  labour  had  declined  to  give
their consent for the proposed sale, the contract subsists for a  period  of
nine (9) months and  it  cannot  be  terminated  before  that  period.  
The
agreement for sale  is  a  contingent  agreement  depending  upon  obtaining
permission under Section 22 and Section 27 of the ULC  Act,  property  being
converted from industrial zone to residential use and  settlement  with  the
labour a…

Jurisdiction of SEBI debarring the respondents as Lead Managers relating to GDRs , for 10 years

whether  SEBI
had jurisdiction in passing the impugned order  dated  20.06.2013  debarring
the respondents for a period of ten years in dealing with  securities  while
considering the role played by the respondents as Lead Managers relating  to
the GDRs issued by six companies  who  issued  such  GDRs. =

The short question that arises in this appeal relates  to  the  jurisdiction
of SEBI under the Securities and Exchange Board  of  India  Act,  1992,  (in
short “SEBI Act, 1992”) to initiate proceedings against the  respondents  as
Lead Managers to the Global Depository Receipts  (in  short  “GDRs”)  issued
outside India based on investigations held by it and on its conclusion  that
in relation to transaction of sale/purchase of  underlying  shares  released
on redemption of GDRs in the securities market in India, the  Lead  Managers
had committed fraud on the investors  in  India  and  that  such  fraudulent
intention existed at every stage of the GDR process  till  sale/purchase  of
unde…

Sec.138 of N.I.Act - Sec.141 of N.I.Act - Cheque Bounce Case - whether the respondent can be made liable in his personal capacity when the Company has not been made a party to the complaint.- Trial court dismissed the complaint and acquitted the accused as the company was not made as accused and case was filed in the personal capacity of accused - cheque was issued not for whole discharge of or part discharge of any liability - High court confirmed the same and dismissed the appeal - Apex court held that as the respondent was the Managing Director of M/s. Salvi Infrastructure Pvt. Ltd. and sole proprietor of M/s. Salvi Builders and Developers, there is no need of specific averment on the point and by virtue of their position they are liable to be proceeded with. we are of the view that the respondent be made liable under Section 138 of the NI Act, even though the Company had not been named in the notice or the complaint. There was no necessity for the appellant to prove that the said respondent was in charge of the affairs of the company, by virtue of the position he held. Set aside the acquittal order and convicted the accused by imposing fine of twice with 9 % interest rather than sentencing him to prison - 2015 S.C. MSKLAWREPORTS

whether  the
respondent can be made liable in his personal capacity when the Company  has
not been made a party to the complaint.

Trail court 
The reasons given  for  the  acquittal
of the respondent were that the Company M/s. Salvi Infrastructure Pvt.  Ltd.
was not made the accused and instead the respondent was made accused in  his
personal capacity. The cheque could not be said to have been issued for  the
discharge of whole  or  part  of  the  liability  because  it  exceeded  the
liability. Further, it had not been proved that the respondent was a  person
liable to make the payment for M/s. Salvi Infrastructure Pvt. Ltd.

 The  High  Court  by  the
impugned order dismissed  the  said  application  on  the  ground  that  the
reasoning set out by  the  Trial  Court  in  its  order  did  not  call  for
reconsideration.

Apex court held that

About the liability under Section 138 of the NI Act, where the cheque  drawn
by the employee of the appellant company on his personal  account,  even  if
it be for …

Earlier user till the day is entitled for interim injunction for infringement of copy rights - Or.39, rule 1 & 2 filed by Plaintiff and also filed by Defendant Or.39, rule 4 vacation of injunction order - Infringement of copy rights - The plaintiff company through its predecessor “First Aryco India Ltd.” had adopted a trade mark “PREMIER” on 10.01.1997 for manufacturing and marketing of a wide range of tissue paper products namely Tissues, Tissue Paper, Facial Tissues, Hanky Packs, Kitchen Towels, Toilet Tissues, Jumbo Rolls, Pop Up Napkins, Specialty Napkins. (Cocktail, Luncheon, Dinner), Serviettes, C-Fold Hand Towels, Napkins, Pop U Dispensers, Soap Dispensers etc. It is further averred that sometime in the first week June, 2011 the plaintiff came to know that the defendants are engaged in unauthorized manufacturing, packing and marketing of tissue papers under the trademark “PREMIUM” in packing/boxes which are deceptively similar to the trademark “PREMIER” and “PREMIER SPECIAL TISSUE BOX” the artwork, layout, pattern, get up, fonts, design placement and colour combination of the defendants‟ boxes is also deceptively similar to the plaintiffs‟ boxes. According to the plaintiff, its investigation revealed that the said infringing tissue boxes of the defendant are being sold in various shops and by roadside vendors in Delhi as well as other parts of the country. The defendants have challenged the validity of documents filed by plaintiff by stating that these cannot be looked into. But, this Court is of the view that apart from the documents challenged, there are large number of other documents available on record which are cogent and clear evidence of prior user i.e. from the year 1998. 43. In view of the above, it appears from the record that two set of packaging are almost similar. Both marks, PREMIER and PREMIUM are deceptively similar. The defendants could not have designed their packaging without placing the packaging of the plaintiff. Prima facie, it is clear that it is a case of violation of vested rights of the plaintiff and pirator thereof cannot become rightful owner in any manner. Thus, the plaintiff has made out a strong case of injunction. 44. Under these circumstances, I am of the considered view that the plaintiff has been able to make a strong prima facie case for infringement of trade mark, copyright and passing off. The balance of convenience also lies in favour of the plaintiff and against the defendants. Incase the defendants/counter claimant is not stopped from using the mark and trade dress in the similar packaging, the plaintiff will suffer irreparable loss and injury, which cannot be compensated in terms of money. Therefore, plaintiff‟s application, being I.A. No.10846/2011 under Order XXXIX, Rules 1 and 2 read with Section 151 CPC, is allowed. The defendants, their dealers, retailers, servants, agents or any one acting for and on their behalf, are restrained from using the trade mark PREMIUM and/or any other trade mark, which is deceptively and confusingly similar to the plaintiff‟s registered trade mark PREMIER as well as similar packaging/trade dress amounting to infringement of copyright and passing off their goods as that of the plaintiff in respect of tissues of all kinds, or any other allied and cognate goods. It is clarified that the finding arrived by this Court about the defendants‟ user is tentative and prima facie view which shall have no bearing when the matter would be considered after the trial on merit. 2015 Delhi(2012)msklawreports

Earlier user till the day is entitled for interim injunction for infringement of copy rights - Or.39, rule 1 & 2 filed by Plaintiff and also filed by Defendant Or.39, rule 4 vacation of injunction order - Infringement of copy rights - The plaintiff company through its predecessor “First Aryco India Ltd.” had adopted a trade mark “PREMIER” on 10.01.1997 for manufacturing and marketing of a wide range of tissue paper products namely Tissues, Tissue Paper, Facial Tissues, Hanky Packs, Kitchen Towels, Toilet Tissues, Jumbo Rolls, Pop Up Napkins, Specialty Napkins. (Cocktail, Luncheon, Dinner), Serviettes, C-Fold Hand Towels, Napkins, Pop U Dispensers, Soap Dispensers etc. It is further averred that sometime in the first week June, 2011 the plaintiff came to know that the defendants are engaged in unauthorized manufacturing, packing and marketing of tissue papers under the trademark “PREMIUM” in packing/boxes which are deceptively similar to the trademark “PREMIER” and “PREMIER SPECIA…

when a plaintiff intends to reserve his right to adduce rebuttal evidence it is not necessary to file a petition for the said purpose. A Memo informing the Court that in respect of the issues on which the burden of proof is on the defendant, plaintiff is reserving his right to adduce rebuttal evidence would suffice. Such Memo must be filed before the defendant starts adducing his evidence. If plaintiff does not file such a Memo and wants to adduce rebuttal evidence after defendant beginning his evidence, he must file a petition seeking permission of the Court to adduce further evidence or evidence in rebuttal.2015A.P.(2002)MSKLAWREPORTS

when a plaintiff intends to reserve his right to adduce rebuttal evidence it is not necessary to file a petition for the said purpose. A Memo informing the Court that in respect of the issues on which the burden of proof is on the defendant, plaintiff is reserving his right to adduce rebuttal evidence would suffice. Such Memo must be filed before the defendant starts adducing his evidence. If plaintiff does not file such a Memo and wants to adduce rebuttal evidence after defendant beginning his evidence, he must file a petition seeking permission of the Court to adduce further evidence or evidence in rebuttal.2015A.P.(2002)MSKLAWREPORTS

Amendment of complaint under sec.200 of Cr.P.C.- Allowed - Evidence recorded - took cognizance and issued summons to the Accused

Amendment of complaint under sec.200 of Cr.P.C.- Allowed - Evidence recorded - took cognizance and issued summons to the Accused - Challenged - High court declined - Apex court held that In the instant case, the  amendment  application  was  filed  on
24.05.2007 to carry out the amendment by adding  paras  11(a)  and  11  (b).
Though,  the  proposed  amendment  was  not  a  formal  amendment,   but   a
substantial one, the Magistrate allowed the amendment application mainly  on
the ground that  no  cognizance  was  taken  of  the  complaint  before  the
disposal of amendment application.
Firstly, Magistrate  was  yet  to  apply
the judicial mind to the  contents  of  the  complaint  and  had  not  taken
cognizance of the matter.
Secondly, since summons was yet to be ordered  to
be issued to the accused, no prejudice  would  be  caused  to  the  accused.
Thirdly, the amendment did not change the original nature of  the  complaint
being one for defamation.
Fourthly, the publication…

Section 62 of the Copyright Act, 1957 and section 134(2) of the Trade Marks Act, 1999 with regard to the place where a suit can be instituted by the plaintiff. - Since the Head office is situated at Bombay,and Since the cause of action arose at Bombay , the plaintiff ought to have filed a suit at Bomabay instead of at Delhi simply because there is a branch office and simply because the advocates at Delhi are well versed in this type of litigations - Interpretation of law should be in a purposive manner - 2015 S.C. MSKLAWREPORTS

Plaintiff filed
a  suit  praying  for  relief  against  defendant  No.1  so  as  to  prevent
infringement of the rights of the plaintiff without obtaining  the  licence.
The  defendant  owns  cinema  halls  in   Maharashtra   and   Mumbai   where
infringement is alleged and the entire cause of action, as  alleged  in  the
plaint, has arisen in Mumbai, Maharashtra.

Civil Suit FAO (OS) No. 359/2007 has been filed in the High  Court  at
Delhi, by virtue of the fact that the Branch  Office  of  the  plaintiff  is
situated at Delhi and the plaintiff is carrying on the  business  at  Delhi.
However, it is not disputed that the plaintiff’s Head Office is situated  at
Mumbai.

The objection was  raised  by  the  defendant  with  regard  to  the
territorial jurisdiction of the court at Delhi. The  single  Bench  and  the
Division Bench of the High Court have upheld the  objection  and  held  that
the suit should have been filed in the facts of the case, in  the  court  at
Mumbai. Hence, the impugne…

Sec.433(e), 434(1)(a) and sec.439(1)(b) of Companies Act - Company Petition to wind up the company for non-payment of it's Debt - statutory notice was served on the respondent at its administrative office address instead of at its registered office address - Their Lordship held that as the Statutory notice not served at its Registered Office Address as contemplated in Section 433(e) of the Act read with Section 434 (1) (a) of the Act - the company petition is dismissed with liberty to file fresh Company petition after serving notice at Registered Office Address - 2015 Telangana & A.P. msklawreports

This company petition is filed under Sections 433(e), 434 (1) (a)
and 439(1)(b) of the Companies Act, 1956 (for short the Act) for an
order to wind up the respondent company for non-payment of the debt
allegedly due to the petitioner.

  It is the pleaded case of the petitioner that the respondent failed to
pay the debt due to it and therefore, the former is liable for non-payment
of the debt.
      Section 433 (e) of the Act reads as under:
       433. A company may be wound up by the Court
       (a)
       (b)
       (c)
       (d)
       (e) if the company is unable to pay its debts;

      Section 434(1)(a) of the Act reads as under:
       434 (1) A company shall be deemed to be unable to pay
its debts-
        (a) if a creditor, by assignment or otherwise, to whom the
company is indebted in a sum exceeding five hundred rupees then
due, has served on the company, by causing it to be delivered at
its registered office, by registered post or otherwise, a demand
under his hand requi…

Whether under sec.28 (2) of The Provincial Insolvency Act , the money recovery suit is not maintainable pending Insolvency Petition ? - No. Or. VII, rule 1 C.P.C. - Money recovery suit filed after receiving Insolvency Petition Notice - Whether maintainable under sec.28(2) of Provincial Insolvency Act - Trail court dismissed the I.A. - Hence this C.R.P. - Their Lordships held that Pendency of proceedings as referred under Section 28(2) of the Provincial Insolvency Act refers to the pendency of proceedings subsequent to adjudication of the application, but not on mere filing of application seeking declaration of applicant as insolvent.- So the suit is maintainable - 2015 Telagana & A.P. msklawreports

Whether in view of pendency of insolvency
proceedings in I.P.No.34 of 2010, the suit filed by the 1st respondent is
barred under Section 28(2) of the Provincial Insolvency Act, 1920.

the petitioner/1st defendant has filed the present application in I.A.No.777
of 2014 under Order 7 Rule 11 r/w.Sec.151 CPC, for rejection of
plaint on the ground that the same is barred under law.  It is the case
of petitioner that he has already filed insolvency petition which is
pending in I.P.No.34 of 2010, seeking to declare him as insolvent and
soon after receipt of summons in the aforesaid I.P., the 1st
respondent/plaintiff has filed suit for recovery of money.
Trail court dismissed the I.A.
Hence this CRP
held that
From a reading of the provision under Section 28(2) of the
said Act, it is clear that, on making of an order of adjudication, the
whole of the property of the insolvent shall vest in the Court or in a
receiver as provided in the said Section and shall become divisible
among the creditor…