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Rammul Dayalmul Vs. Megh Raj Gunga Bux - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in1Ind.Cas.199
AppellantRammul Dayalmul
RespondentMegh Raj Gunga Bux
Excerpt:
insolvency debtors art (11 and 12 vic. c. 12), section 9 - petition in insolvency, form of--wording of the act, how far to be followed--insolvent alleging creditor's agreement to settle his claim--whether court should give opportunity to prove such agreement. - - the insolvent made an application in february 1908, in which, trusting the petition is a good one, he did not raise this objection. one knows perfectly well how in this country all sorts of indirect or direct pressures are brought against a man when he is in insolvent circumstances and how naturally some creditors are anxious to get a greater slice out of the estate than others......the act and is not in accordance with the authorities. mr. strangman relied upon the case of abu haji suleman v. haji jan mahomed 8 bom. l.r. 648--the judgment of the court of appeal--which i followed in another insolvency matter, no. 213 of 1906. the first point to notice is the wording of the present petition.3. now, as observed in the court of appeal judgment in ex parte coates (1877) 5 ch. d. 979, by james l.j., 'this is really not a mere matter of form. the act says you must tell the debtor what the act of bankruptcy is which you allege against him, so that he may have an opportunity of contesting it in the first instance.' in that case, it is to be observed, the petition said that the debtor had departed from his dwelling house or otherwise absented himself and bacon c.j. in his.....
Judgment:

Russell, J.

1. This is a Rule, taken out by the adjudicated insolvent, calling upon the opposing creditor to show cause why the adjudication order should not be set aside.

2. Two questions have been raised in this matter. The first point is that the petition itself does not sufficiently follow the wording of Section 9 of the Act and is not in accordance with the authorities. Mr. Strangman relied upon the case of Abu Haji Suleman v. Haji Jan Mahomed 8 Bom. L.R. 648--the judgment of the Court of Appeal--which I followed in another Insolvency matter, No. 213 of 1906. The first point to notice is the wording of the present petition.

3. Now, as observed in the Court of Appeal judgment in Ex parte Coates (1877) 5 Ch. D. 979, by James L.J., 'This is really not a mere matter of form. The Act says you must tell the debtor what the act of bankruptcy is which you allege against him, so that he may have an opportunity of contesting it in the first instance.' In that case, it is to be observed, the petition said that the debtor had departed from his dwelling house or otherwise absented himself and Bacon C.J. in his graphic way says at page 980: 'The fact of the debtor having departed from his dwelling house in itself announces nothing. He may have gone to bury his wife, or his mother, or to a meet of foxhounds.' It is obvious, therefore, that the petition in that case was very different from the wording of the petition here, and the same remark applies to the case before me, in which I followed the judgment of the Court of Appeal to which I have already referred.

4. Now just to glance again at the present petition, and to look at the words of it. First, it says that the Insolvent has absconded not being able to moot his liabilities. I apprehend liabilities are liabilities to some body and I apprehend that means liabilities to his creditors. Thus the petition would read: He left Bombay--he ran away secretly from Bombay in order that he might not meet his creditors. I think that is equivalent to he left with intent to defeat or delay his creditors. Again, he did that after closing his place of business. Thus he ran away and did so in order to avoid meeting his creditors and after closing his place of business. Not only does the petition say that, but it also goes on to say: 'Several warrants of arrest (that must mean civil warrants I take it) have been issued against the said Meghraj to avoid execution of which he has absconded from Bombay.' That again is another ground of evidence of intent to defeat or delay the creditors and of avoiding execution. From the common sense point of view, then, it appears to me that looking at this petition, the insolvent (in James L.J.'s words) must have known what the act of insolvency alleged was.

5. Another point to consider is that this objection is raised now, four years after the petition was presented. The insolvent made an application in February 1908, in which, trusting the petition is a good one, he did not raise this objection. I, therefore, think it is too late for him to raise it now. On the whole, the argument of the Advocate-General fails. I must, however, say this that in my opinion it is absolutely essential that petitions in insolvency should follow the exact wording of the Act, and this judgment must in no sense be taken to fritter away the effect of the judgment of the Chief Justice in Abu Haji Suleman v. Haji Jan Mahomed 8 Bom. L.R. 648, which I have already referred to.

6. The other question that arises is whether I should grant an opportunity to the insolvent of proving the alleged agreement on the part of his petitioning creditor to settle his claim for Rs. 3,000. It seems to me that equitably and justly I ought, to do so. One knows perfectly well how in this country all sorts of indirect or direct pressures are brought against a man when he is in insolvent circumstances and how naturally some creditors are anxious to get a greater slice out of the estate than others. It appears to me on the analogy of the Civil Procedure Code, whereby when a suit is said to have been settled, the Court has full jurisdiction to consider whether the parties have formally intervened with an agreement to that effect. I can grant this application. It would be unjust to allow a creditor one day to say: 'I will settle my claim against you at such and such a rate' and then, from a desire of getting a little more, or some other motive, to turn round and say: 'Oh no, I will not carry out my agreement.'

7. Therefore, it seems to me that I must hold the inquiry as to whether the suggested agreement has been come to.


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