THE HONOURABLE SRI JUSTICE B.PRAKASH RAO
AND
THE HONOURABLE SRI JUSTICE R.KANTHA RAO
CIVIL MISCELLANEOUS APPEAL Nos.296 of 2001
and 453 of 2010
COMMON JUDGMENT: (per the Hon’ble Sri JusticeB.Prakash Rao)
Since both the appeals are between the same parties and relate to the same matter, they are heard together and are being disposed of by a common judgment.
C.M.A.No.296 of 2001 is filed against the order, dated 29.12.2000, passed by the Senior Civil Judge, Parvathipuram, Vizianagaram District, in I.P.No.1 of 1999, whereunder the said I.P. was dismissed for default.
C.M.A.No.453 of 2010 is filed against the order, dated 11.10.2000, passed by the District Judge, Vizianagaram District, in I.P.No.1 of 1999, whereunder the said I.P. was made over to the Court of Senior Civil Judge, Parvathipuram, for disposal in accordance with law.
In C.M.A.No.296 of 2001, the grievance of the appellant, who filed the Insolvency Petition, is to the effect that originally, the said I.P. was filed before the District Judge, Vizianagaram. However, the same was made over by the District Judge, Vizianagaram to the Court of Senior Civil Judge, Parvathipuram, Vizianagaram District. Subsequent to the said transfer, the appellant had no notice of the same, yet the matter was taken up and the case was dismissed for default, which is not correct.
Heard learned counsel appearing on either side and perused the material available on record.
We are of the view that admittedly, there is nothing on record to show that after transfer of the said I.P. from the District Court, Vizianagaram to the Court of Senior Civil Judge, Parvathipuram, there was any notice to the appellant i.e., the appellant had no information about transfer of the said I.P. from the District Court, Vizianagaram to Court of Senior Civil Judge, Parvathipuram and also the date of hearing and hence, the appellant cannot be put to any blame nor can the case be dismissed as such, that too, for default Hence, C.M.A.No.296 of 2001 is allowed and the order, dated 29.12.2000, passed by the Senior Civil Judge, Parvathipuram, Vizianagaram District, in I.P.No.1 of 1999 is set aside.
In C.M.A.No.453 of 2010, the grievance of the appellant is as regards the transfer of the said I.P. from the District Court, Vizianagaram to the Court of Senior Civil Judge, Parvathipuram.
The objection raised by the appellant is to the effect that having regard to the valuation of the very Insolvency Petition i.e., a sum of Rs.11,68,657/-, the question of making over the said I.P. to the Court of Senior Civil Judge, Parvathipuram by the District Judge, Vizianagaram, does not arise and the order is wholly unsustainable.
On perusal of the material on record, we find that there is no dispute as regards the valuation of the Insolvency Petition i.e., Rs.11,68,657/-. Hence, necessarily the matter has to be disposed of only by the District Court as per Section 3 of the Provincial Insolvency Act, 1920.
For the foregoing reasons, C.M.A.No.453 of 2010 is allowed and the order, dated 11.10.2000, passed by the District Judge, Vizianagaram District, in I.P.No.1 of 1999 is set aside and the matter is remanded to the District Court, Vizianagaram, for fresh disposal on merits and in accordance with law, after giving notice and opportunity to both the parties.
Accordingly, both the appeals are allowed and the impugned orders therein are set aside. However, there shall be no order as to costs.
_________________________
JUSTICE B.PRAKJASH RAO
_______________________
JUSTICE R.KANTHA RAO
10th June 2010
dr
