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when to remand for fresh consideration =Apparently the lower appellate court has remitted the IP for fresh consideration without noticing the findings reached by the Insolvency Court as referred to above. That apart, no ingredients of Order 41, Rules 23, 23-A or 25 of the Code have been attracted in the present case. The impugned order of remand is, therefore, wholly unjustified.

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THE HON’BLE SRI  JUSTICE VILAS V. AFZULPURKAR

 

 

CRP NO. 3482 OF 2008

 

Date of Judgment:  1.3.2011

Between:

Kankanwar Govinda Rao and another

…Petitioners

and

          Sri Manisha Financeris and another

..Respondents


THE HON’BLE SRI  JUSTICE VILAS V. AFZULPURKAR

 

 

CRP NO. 3482 OF 2008

 

ORDER:

Respondents 2 and 3 in IP No. 12 of 1998 (hereinafter referred to as “IP”) had successfully established before the Additional Senior Civil Judge, Nellore that they are bona fide purchasers and the said purchase is not with a view to defeat the creditors of the first respondent in IP. The said IP was dismissed with a finding that the transaction of purchase by the respondents 2 and 3 in IP under two sale deeds dated 2.5.1998, registered on 6.5.1998, are bona fide sales by the first respondent in IP. Since the IP was dismissed, an appeal was filed before the learned Prl. District Judge, Nellore in AS NO. 160 of 2005. The lower appellate Court has set aside the order of Insolvency Court and remitted the IP for fresh consideration. Aggrieved thereby, the respondents 2 and 3 in IP i.e., the purchasers from first respondent in IP, have preferred this revision.

Heard Mr. P. Sridhar Reddy, learned counsel for revision petitioners. Though the first respondent was served by substitute service as per the orders of this Court, nobody appears for him. The second respondent appears through a counsel, but he is the vendor of the revision  petitioners and he is sailing and supporting the revision petitioners.

The contention of the learned counsel for the revision petitioners is that the lower appellate Court has set aside the order of the Insolvency Court without there being any proper adjudication and he, in fact, questions the necessity of remanding the matter, when there are clear findings by the Insolvency Court. The said contention appears to be justified in view of the fact that the Insolvency Court under point No.2 had considered the very same question as to whether the petitioners herein are bona fide purchasers for valuable consideration and in paragraphs 15 and 16 of its order the said aspect has been discussed and a finding was reached that the sales are genuine for valuable consideration and the purchasers have, not only paid the consideration, but also made constructions on the petition ‘A’ schedule property. The Insolvency Court also found that there is no collusion between the revision petitioners and the first respondent in IP. However, the lower appellate Court, while considering the appeal, has referred that, “there is no discussion or determination of the issue as to whether the transaction was with an intent to defeat or delay the creditor or body of creditors.” This appears to be totally in correct in view of the findings reached by the Insolvency Court referred to above. Apparently the lower appellate court has remitted the IP for fresh consideration without noticing the findings reached by the Insolvency Court as referred to above.  That apart, no ingredients of Order 41, Rules 23, 23-A or 25 of the Code have been attracted in the present case. The impugned order of remand is, therefore, wholly unjustified.

I am also, prima facie, not impressed with the other aspect raised in the matter that the insolvency petition is not maintainable under Order 30, Rule 1 of the Civil Procedure Code (for short “the Code”) and in my view what all the Order 30 of the Code is that a firm, though not a legal person, can be sued in the name of the firm. The requirement of all the partners suing the insolvency petition may not arise.  However, that defect now does not stand subsisting in view of the fact that in the appeal the other partner has been impleaded.

The revision petition is allowed, the impugned order is set aside and the appeal shall stand restored to the file of the learned Prl. District Judge, Nellore. The learned Judge shall hear and decide the appeal on merits and dispose of the same expeditiously. No costs.

_________________________

VILAS V. AFZULPURKAR, J

Dt. 1.3.2011

KR

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