State Bank of India vs Madan Lal Mehta and Others

M.L. Varma, J.

(1) This is a revision petition filed against an order dated 21.9.89 of the Insolvency Judge, Delhi on two applications made by the petitioner herein under Sections 28 and 35 of the Provincial Insolvency Act (hereinafter referred to as ''the Act''). By this order the learned Court disposed of both the applications. The application u/s 35 was rejected by the order against which admittedly an appeal has been filed by the petitioner herein. As regards the application u/s 28, the permission was granted for filing the suit against the insolvents as well as the guarantors subject to the conditions that if the applicant viz., the petitioner herein succeeded ultimately in the suit it shall be forbidden from proceeding against the person and property of the insolvents namely respondents 2 and 3 herein. The revision petition is against this part of the said order.

(2) Mr. Sham Babu, appearing for respondents 2 to 4 has raised a preliminary objection in regard to the maintainability of the present revision petition on the basis of the provisions of Section 75 of the said Act. His objection is two fold. Firstly, he contends that the provisions of Section 75 themselves pr vide for filing of a revision in the High Court and that such revision can only be filed after an appeal has been disposed of by the District Judge before which an appeal lies against an order made by an Insolvency Court. Secondly, he submits that since the impugned order is appealable, no revision u/s 115 CPC . is maintainable. . In support of his preliminary objection he has cited two authorities. The first judgment is of Punjab & Haryana High Court reported in (1968) 70 PLR 649 in the case of Gita Rani and others v. Balsaran Singh & others. He has also placed reliance on a judgment of our own Court in F.A.C. 1/71 in the case of Krishan Chand and the Official Liquidator and another. In both these judgments it has been held that if an order is passed in the exercise of insolvency jurisdiction by the Insolvency Court then such an order is appealable. It has also been held that against such an order a revision petition u/s 115 CPC . would not lie.

(3) In reply to this preliminary objection, Shri Gulati, learned counsel for the petitioner, has pointed out that there are three ingredients which have to be satisfied for purposes of an appeal being filed u/s 75 of the said Act. Firstly, a person who appeals should be a creditor, debtor or receiver. Secondly, the order should be of the Insolvency Court and thirdly that a person should be an aggrieved person. Mr. Gulati fairly concedes that the first two ingredients are fulfilled in this case. He, however, contends that the petitioner in this matter is not an aggrieved party. He lies contended that without being an aggrieved party there was no question of the petitioner herein filing an appeal. Therefore, the present revision petition is maintainable since without an appeal u/s 75 there was no question of coming with a revision petition under that Section. Learned counsel has cited three judgments in support of bids argument that the petitioner herein is not an aggrieved party. The first judgment is of Bombay High Court in the case of Lalchand Hirachand Gujar v. Tuljaram Baoji and others, reported in AIR 1942 Bom 27. The second judgment is of Punjab High Court in the case of Firm Ram Lal Ganpat Rai and Another Vs. Firm Narain Das Faquir Chand and Another, . The third case is of the Lahore High Court in the case of Tikka Sant Singh v. Sain Das Chawla, reported in Air 1937 Lah 433. In all the three judgments it has been held that if the Court refuses to file a complaint pursuant to an application u/s 69 of the said Act then the party who moved the Court by an application u/s 69 of the said Act is not an aggrieved person and, Therefore, there is no question of an appeal lying against such an order.

(4) I am of the opinion that these authorities are of no help to the petitioner. This is because it is for the Court to file a complaint and a party merely approaches the Court u/s 69 for doing so. If the Court chooses not to file a complaint, these judgments hold that the person can be said to be only a disappointed person. I am of the opinion that the grievance of the petitioner that conditions have been imposed while allowing the application u/s 28 would made it an appealable order. The argument of learned counsel that the fact that the application has been allowed and, Therefore, there was no question of the petitioner appealing against the same does not impress me. The grievances made in the revision petition themselves constitute the grievances for filing the appeal.

(5) In this view of the matter, the preliminary objection raised by Shri Sham Babu has merit. The revision petition is dismissed as being not maintainable. There will be no order as to costs.