ORDER
S. Jagadeesan, J.
1. The petitioning creditor has filed the petition for adjudicating the respondents as insolvents.
2. The petitioner has stated in the petition that the respondents borrowed a sum of Rs. 1 lakh from the petitioner on 10.10.91, agreeing to repay the same with interest at 24% p.a. The respondents repaid a sum of Rs. 60,000 on different dates during 10.10.91 and 28.6.93. The respondents have to pay the balance of Rs. 40,000 together with interest. When the petitioner tried to meet the respondents at their residence, he could not meet them, as the inmates in the house of the respondents declined to reveal the whereabouts of the respondents. The petitioner has come to the conclusion that the respondents are avoiding the creditor and evade to meet him. Hence he has filed the petition.
3. The respondents had given a telegram on 2.11.93 to the petitioner stating that “paying amount 28th please wait”. Further on 7.12.93, the second respondent has written a letter to the petitioner stating that due to the cyclone the business has been affected and he requested the petitioner to wait till February, 1994 and he also agreed to repay the amount in February.
4. The second respondent has filed counter stating that the amount due is only under the chit transaction. The relevant chit was commenced on 1.9.91. The total value of the chit is Rs. 1 lakh, consisting of 20 months. The first respondent, who is the wife of the second respondent was the successful bidder in the first auction held on 10.9.91. After deducting the bid amount, the first respondent was paid Rs. 45,000 in five instalments, for which a pronote was executed for Rs. 1 lakh. The second respondent stood surety. The first respondent has been regular in paying the chit amount every month. After the first and second chit, the petitioner committed fraud by collecting the full amount of Rs. 5,000 from the first respondent stating that there was only one bidder in the chit and every month the first respondent has to pay a sum of Rs. 5,000. Because of this misunderstanding arose between the petitioner and the respondents, the last payment was made by the first respondent, a sum of Rs. 20,000 on 28.6.93 and now no amount is due to the petitioner. The second respondent is a practicing lawyer and he is attached with Mr. P. S. Seetharaman, as junior. The petitioner knows the same and he is also having seniors office phone number. The petitioner could have contacted the second respondent in the office. The petition has been filed with some ulterior motives. The petitioner had always met the second respondent at No. 419/F, ‘A’ Type, Malar Colony, Anna Nagar West, Madras-40 where the respondents are residing. In fact the court summon was served only in the said address. They have denied that they were not available in the house it is further stated even in the absence of the second respondent, his wife, first respondent, is always available at the house. The allegations have been made just to defame the respondents. The respondents arc always available in the said address in Anna Nagar.
5. Heard both sides. The counsel for the petitioner contended that the respondents are debtors and they have not discharged the debt due to the petitioner. Inspite of best efforts,, the petitioner could not meet the respondents at their residence. Hence the petitioner has correctly come to the conclusion that the respondents are not residing there and avoiding to meet the creditor.
6. Regarding the admission of liability, he has produced the telegram and the letter signed by the second respondent.
7. Per contra, the counsel for the respondents contend that the second respondent is a practicing advocate and the petitioner fully knows about the second respondent and only to defame the respondents, the insolvency petition has been filed. In fact no amount is due to the petitioner.
8. Section 9(d)(ii) of the Presidency Towns Insolvency Act makes it clear that if the debtor departs from his dwelling-house or usual place of business or otherwise absents himself, it would amount to act of insolvency. Section 9(d)(iii) of the said Act also makes it clear that if the debtor secludes himself so as to deprive his creditors of the means of communicating with him, this will also amount to act of insolvency. The petitioner had made the following averments:
“The petitioner could not meet the respondents and the inmates in the house of the respondents refused to reveal the whereabouts of the respondents.
The petitioner is compelled to come to the conclusion that the respondents are avoiding the creditors like her with a view to cheat and defraud the claim of the creditors. The respondents are evading to meet the creditors.
The respondent/debtor is residing at 419/F, ‘A’ Type, Malar Colony, Anna Nagar, Madras 40 from the year 1991 till this date. Hence this Hon’ble Court has got jurisdiction to entertain this applications.”
From the above stated pleadings, it could be seen that it is not the case of the petitioner that the respondents had left their dwelling house or usual place of business of the second respondent. In the counter, the second respondent has stated that he is a practicing lawyer and he is attached to a senior and the petitioner knows about the same. No reply has been filed by the petitioner. It is not the case of the petitioner that he has tried to meet the second respondent in his office. The petitioner has not given out as to on what ground the petition has been filed because Section 9(d)(ii) and (iii) of the said Act envisages two different conditions. A mere allegation that the petitioner could not meet the respondent and the inmates in the house refused to reveal the whereabouts of the respondent may not be sufficient to draw an inference as to either of the conditions had been satisfied as prescribed in the statute.
9. Further more, the averment in para 7(a) of the petition clearly shows that the respondents are residing in their house at No. 419/F, ‘A’ Type, Malar Colony, Anna Nagar, Madras-40, from the year 1991 till the date of filing of the petition. So it could be seen that the averment is only to the effect that the respondents are residing in their house. It is not the case of the petitioner mat the respondents had left the house or secluded themselves from meeting the creditor. It is the admitted case that the respondents are residing in the same house.
10. Hence I am of the view that the petitioner had not made out any case against the respondents either they had left their dwelling house or usual place of business or secluded themselves so as to deprive the creditors. Hence the petitioner totally railed to establish his case.
11. Hence the petition is devoid of any merits. Accordingly the same is dismissed with cost of Rs. 250.
