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In Re: Manekji Pestonji Talati - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1908)10BOMLR84
AppellantIn Re: Manekji Pestonji Talati
DispositionAppeal allowed
Excerpt:
indian insolvent act (st. 11 & 12 via. c. 40), section 5-insolvent debtor's court at bombay-jurisdiction-'reside'-a person residing at shanghai cannot apply for insolvency to the bombay court.; a person residing in shanghai and carrying on business in partnership in bombay cannot present his petition to the insolvent debtor's court at bombay to have the benefit of the act. - section 3: [s.b. mhase, d.s. bhosale & a.s. oka, jj] offences of atrocities - complaint under held, merely because the caste of the accused is not mentioned in the fir stating whether he belongs to scheduled caste or scheduled tribe, it cannot be a ground for quashing the complaint. after ascertaining the facts during he course of investigation it is always open to the investigating officer to record tht the..........a petition to this court to have the benefit of the act. he lately carried on business in bombay, hongkong, shanghai with his partners, n.s. talati, d.s. talati and hajarimull mooltanchand. his petition is attested by his britannic majesty's vice-consul at shanghai.2. the petitioner's partners who are resident within the jurisdiction of this court had previously filed their petition.3. the clerk of the court refused to accept the petition without an order of the court upon the ground that the petitioner must either be in prison or within the jurisdiction of the court under section 5 of the act.4. mr. strangman for the petitioner appeared and argued that the clerk of the court has taken a wrong view.5. the important words of section 5 are : 'any person who shall reside within the.....
Judgment:

Russell, J.

1. In this case M.P. Talati, who is residing in Shanghai, China, has presented a petition to this Court to have the benefit of the Act. He lately carried on business in Bombay, Hongkong, Shanghai with his partners, N.S. Talati, D.S. Talati and Hajarimull Mooltanchand. His petition is attested by His Britannic Majesty's Vice-Consul at Shanghai.

2. The petitioner's partners who are resident within the jurisdiction of this Court had previously filed their petition.

3. The Clerk of the Court refused to accept the petition without an order of the Court upon the ground that the petitioner must either be in prison or within the jurisdiction of the Court under Section 5 of the Act.

4. Mr. Strangman for the petitioner appeared and argued that the Clerk of the Court has taken a wrong view.

5. The important words of Section 5 are : 'Any person who shall reside within the jurisdiction of any of the Supreme Courts at Calcutta, Madras or Bombay and...shall be in insolvent circumstances may at any time apply by petition to the Court for the relief of Insolvent Debtors within the Presidency where such insolvent debtor shall then be & c. '....

6. Mr. Strangman relied on in Re Howard Brothers (1873) 11 Beng. L.R. 254 where it was held that the word 'reside' in the section, when applicable to the insolvency of traders includes an occupation by trading, whether or not accompanied by sleeping or dwelling. He also relied on a case in which a petition filed by R. Hormusji and others who resided at Karachi but carried on business with Byramji Hormusji and others in Bombay as H.J. Rustomji & Co. was accepted by the Clerk of the Court.

7. He also mentioned the case of William Watson & Co. where the petition was presented by the constituted agent of W. Watson and PaulPlfelderer, neither of whom was resident in Bombay at the time.

8. But in my opinion the words of the section are too clear and distinct to enable me to accede to Mr. Strangman's argument. The application must be to the Court within the Presidency where such insolvent debtor shall then be.

9. No doubt 'residence' is an elastic word and its meaning may be modified by the context, ex parte Breull (1880) 16 Ch. D. 484;- Graham v. Lewis (1882) 22 Q.B.D. 1. But it is to be noticed that the words are not 'where he shall then be residing' but where he shall then be. I take it this means where he shall in fact be. In other circumstances to enable the petitioner to present the petition he must actually be within the presidency. In Rustomji's case no objection was taken to the acceptance of the petition. In Watson's case I apprehend there was no objection; the petition was presented by the duly constituted attorney and the maxim ' Qui facit per alium facit per se' applies.

10. In re Cockburn (1867)2 Ind. Jur. N.S. 326 a decision of Peacock, C.J., supports the view I have taken of the section and also the reasoning of Strachey J. in in re James Currie I L R (1896) 21 Bom. 405.

11. It certainly is difficult to see how this Court, if it were to declare the petitioner insolvent, could, in the event of his disobeying any order that might be made, possibly ensure the enforcement of its order upon the petitioner who is in Shanghai.

12. Just as this Court would have no jurisdiction unless an act of insolvency had been committed within its jurisdiction it will refuse to relieve, persons who are outside its jurisdiction unless they choose to bring themselves within it.

13. See Cooke v. Charles A. Vogeler Co. [1901] A.C. 102; Ex parte Crispin (1873) L.R. 8 Ch. 374; Ex parte Blain: In re Sawers; (1879) 12 Ch.D. 522; and In re Pearson [1892] 2 Q.B. 263.

14. In my opinion the Clerk of the Court was right in refusing to accept this petition and I must consequently decline to accept it.


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