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 creditors, and thereafter, after adjudication, it is not open to
any creditor to commence any suit or other legal proceeding, except
with the leave of the Court and on such terms as the Court may
impose.  It is clear from the said provision that Section 28(2) comes
into effect only after adjudication of the application filed by the
applicant under the provisions of the Provincial Insolvency Act, 1920.
Therefore, after adjudication of the application filed by the applicant
seeking to declare him as insolvent and during pendency of further
proceedings for division of properties to the creditors, no creditor can
institute any suit or commence any legal proceedings without the
leave of the Court.  Pendency of proceedings as referred under Section
28(2) of the 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.

Popular posts from this blog

Sec.20 of C.P.C - Territorial Jurisdiction - suit for recovery of money based on Contract - As per the admitted plaint averments, the office of the defendants is located in Pargi, the offer made by the petitioner was accepted at Pargi, the contract was entered between the petitioner and the respondents at Pargi and the same was executed within the jurisdiction of the Court at Pargi.- Plaint returned with objection - as an after thought added the acceptance of contract was received at Malkajgiri - Trail court returned the plaint to file in proper court - Revision - Their Lordships held that if filing of suit is based on making of a contract, the cause of action arises at the place where the offer is accepted and if the suit is based on termination of a contract, the cause of action arises at the place where such termination order is received. Admittedly, the suit is based on making of a contract and not on termination of the contract.- dismissed the revision - 2015 Telangana & A.P. msklawreports

Sec.482 Cr.P.C. - Section 8 of the Andhra Pradesh Public Examination (Prevention of Malpractice and Unfair Means) Act, 1997 - Part B question Paper was missed ( said to be distributed to A1 along with other students by A2 an invigilator ) - Charge - she was negligent in performing the invigilation duties. - Their Lordships held that Mere negligence in performing invigilation duties, does not attract the offence set-forth in the Act. Therefore, in absence of any allegation that the petitioner herein has committed the offence set out in Section 5 of the Act, she cannot be subjected to prosecution for which the penalty has been provided under Section 8 of the Act.- Quashed the criminal proceedings - 2015 Telganga & A.P. msklawreports

Section 5 of Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971 read with Rule 9(1)(a)(i), (ii) and (iii) of the Rules of 1989. - Powers of Revenue Court - Petitioners are the legal heirs of Late Sri A. Penta Reddy and respondents 1 to 3 are the brothers of Penta Reddy - Petitioners claimed as Separate Property - Brothers/Respondents claimed as Joint family Property - MRO held summary enquiry and held that it is Joint family Property - No Appeal to RDO - after the lapse of 12 years filed Revision directly to Joint Collector - JC. dismissed the revision - this Writ - Their Lordships held that in the absence of any suit for Declaration of title after receiving Rule 9 notice with in 3 months, the MRO can decide the dispute summarily - since no appeal is filed nor any suit is filed in any court - the orders of MRO can not be challanged after the lapse of 12 years - dismissed the revision - -2015 Telangana & A.P. MSKLAWREPORTS