TMI Blog2005 (4) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:""; mso-padding-alt:0cm 5.4pt 0cm 5.4pt; mso-para-margin-top:0cm; mso-para-margin-right:0cm; mso-para-margin-bottom:8.0pt; mso-para-margin-left:0cm; line-height:107%; mso-pagination:widow-orphan; font-size:11.0pt; font-family:"Calibri","sans-serif"; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin; mso-fareast-language:EN-US;} <![endif]--> P.Sathasivam And S.K.Krishnan JJ. R.KRISHNAMURTHY, S.M.LOGANATHAN, VASUDEVAN Advocates JUDGEMENT- ( 1. ) The Above Original Side Appeal has been filed against the order of the learned Single Judge dated 20-10-2004, made in Application No. 91/2004 in I. N. No. 183/2003 in and by which the debtors were asked to pay ₹ 5 lakhs out of ₹ 14 lakhs due on or before 29-10-2004. ( 2. ) Heard Mr. R. Krishnamurthy, learned senior counsel for appellants and Mr. Vasudevan for respondent. ( 3. ) The respondent herein, namely, M/s. Tata Finance limited obtained an award for ₹ 10,89,782/- as compensation on arrears of monthly h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the dispute. The debtors were served with Notice and filed a counter statement, however, they did not participate in the arbitration proceedings. The petitioning creditor proved its case and therefore an award was passed on 24-7-2001. The debtors even after the award, failed to pay any amount. Therefore, the petitioning creditor filed Insolvency Notice No. 183 of 2003 under Section 9 (2) of Presidency Towns Insolvency Act, demanding a sum of ₹ 14,91,615-42 being the amount calculated as per the award. The debtor after service in I. N. No. 183 of 2003 belatedly filed Petition No. 544134 of 2004 before the High Court, Bombay to set aside the award dated 24-7-2001. The High Court dismissed the said petition by an order dated 28-7-2004. The debtors have filed an appeal in Appeal No. 506 and 507 of 2004. The said appeal was also dismissed by the Division Bench of the Bombay High Court on 17-8-2004. The award dated 24-7-2001 is, therefore, become final. Hence the application making allegations against the arbitration is not maintainable. The debtors have not furnished sufficient ground as contemplated under Section 9 (5) of the Act to set aside the Insolvency Notice No. 183 of 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (1), a debtor commits an act of insolvency if a creditor, who has obtained a decree or order against him for the payment of money (being a decree or order which has become final and the execution whereof has not been stayed), has served, on him a notice (hereafter in this section referred to as the insolvency notice) as provided in sub-section (3) and the debtor does not comply with that notice within the period specified therein: it is also useful to refer Section 36 of the Arbitration and Conciliation Act which reads as under: 36. Enforcement where the time for making an application to set aside the arbitral award under section 34 has expired, or such application having been made, it has been refused, the award shall be enforced under the Code of Civil Procedure, 1908 in the same manner as if it were a decree of the Court. As per Section 35 an arbitral award shall be final and binding on the parties and persons claiming under them respectively. We have already found that the arbitration award dated 24-7-2001 has reached its finality, since the same has been confirmed up-to the level of the Division Bench of the Bombay High Court. In such a circumstance, as per Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree of the Court. We are in respectful agreement with the said view. Sub-section (2) of Section 9 provides that a debtor commits an act of insolvency if a creditor, who has obtained a decree or order against him for the payment of money being a decree or order which has become final and the execution whereof has not been stayed, has served on him and Insolvency Notice and the debtor does not comply with that notice within the period specified therein. The Insolvency Act has not defined the expression 'decree or order'. Under the definition of a decree contained in Section 2 (2) of the Code of Civil Procedure, three essential conditions are necessary, namely, (1) that the adjudication must be given in a suit; (ii) that the suit must start with a plaint and culminate in a decree; and (iii) that the adjudication must be formal and final and must be given by a civil or revenue Court. By Section 2 (14) the expression 'order' is defined to mean the formal expression of any decision of a Civil Court which is not a decree. ( 9. ) In the light of these principles, if we consider the provisions of subsection (2) of Section 9 of the Insolvency Act, the essential condition i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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