ELBROS TEXTILES LIMITED Vs. SURENDRAKUMAR HARKISHOR JAIN

JUDGEMENT

(1.) M/s. Elbros Textiles Limited has filed this petition for adjudication of Surendrakumar Harkishor Jain as an Insolvent on the ground that the said debtor has failed to comply with the Insolvency notice No. N/122/88 dated 6/07/1988.

(2.) THIS petition raises two questions of law. The said questions of law are formulated as under :- (1) Whether one of the joint decree-holder is entitled to file an Insolvency petition for adjudication of the debtor as an Insolvent or whether all the decree-holders must necessarily join in the petition as petitioners ? (2) Whether the Insolvency petition based on non-compliance of Insolvency notice calling upon the debtor to pay the decretal debt in pursuance of a decree passed by the foreign Court or furnish security in respect thereof is not maintainable in case of nonresident creditor in absence of prior permission of Reserve Bank of India ? in my opinion, the insolvency petition can be filed by one of the joint creditors on principles anologous to Order XXI, Rule 15 (1) of Code of Civil Procedure. In my opinion, Insolvency petition is maintainable even in absence of permission of Reserve Bank of India if the debtors fails to furnish security for payment of decretal debt. Actual payment can be made on receipt of permission from Reserve Bank of India or Central Government.

(3.) THE material facts required to be stated for disposal of this petition are as under :- (a) On 19/04/1985, a decree was passed by the Court of Queen's Bench Division of the Supreme Court of England and Wales against Stretch Fibres (India) Ltd. and Surendra Jain. Elbros Textiles Ltd. and Adolph Linkerman were the co-plaintiffs in the proceeding before the High Court of Justice Queen's Bench Division. By the said judgment and decree dated 19/04/1985, the defendants were directed to pay to the plaintiffs the sum of Sterling ? 1,83,115. 65 and sum of ? 98000 together with interest thereon from 1st day of September, 1978 to the date of the decree with cost of the action to be taxed. (b) The Court is informed by the learned Counsel for the petitioning creditor that the said Adolph Likerman was a director of Elbros Textiles Ltd. at the material time and in fact the amounts in question were recoverable by Elbros Textile Ltd. alone. The Court is informed by the learned counsel for petitioning creditors that Shri Adolph Linkerman was joined in the proceeding merely as a proforma plaintiff. The Court is further informed that Mr. Linkerman is not alive. These facts are not on affidavit. I shall, therefore, assume for the purpose of this petition that both the decree-holders are the joint creditors of the two debtors i. e. Stretch Fibres (India) Ltd. and Surendrakumar Harkishor Jain.