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In Re: Fardunji Dadabhai Daruvala - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported inAIR1924Bom512; 83Ind.Cas.782
AppellantIn Re: Fardunji Dadabhai Daruvala
Excerpt:
presidency towns insolvency act (iii of 1909), sections 27, 38 - examination of insolvent--application, when to be made. - indian evidence act, 1872 section 24: [v.s. sirpurkar & deepak verma,jj] dying declaration - multiple murders by accused - dying declaration not implicating one accused - evidence of eye witnesses however completely fixing his criminal liability ocular evidence found credible held, absence of his name in dying declaration would be of no help to accused. .....was not made before, and it is necessary to point out that it is too late to apply for the examination of an insolvent when the petition is on the board for final hearing, except in very special circumstances. the result would ordinarily be, that, if the examination were ordered, the insolvent's discharge would be postponed until the examination was concluded, although on the merits the insolvent might be entitled to his discharge immediately. the official assignee has reported to me that this indirect method of obtaining the postponement of an insolvent's discharge is being frequently used, and, in my opinion, it should be stopped. a creditor is expected to know when his debtor becomes insolvent, as it is prescribed by the act that the adjudication order should be published in.....
Judgment:

Norman Macleod, C.J.

1. The insolvent was adjudicated on his own petition on January 2'A, 1923. As he declared no assets, his petition was dealt with according to the summary procedure prescribed by the Presidency Towns Insolvency Act.

2. The insolvent has now applied for his discharge, but a creditor makes an application for his public examination. No sufficient reason is given why the application was not made before, and it is necessary to point out that it is too late to apply for the examination of an insolvent when the petition is on the board for final hearing, except in very special circumstances. The result would ordinarily be, that, if the examination were ordered, the insolvent's discharge would be postponed until the examination was concluded, although on the merits the insolvent might be entitled to his discharge immediately. The Official Assignee has reported to me that this indirect method of obtaining the postponement of an insolvent's discharge is being frequently used, and, in my opinion, it should be stopped. A creditor is expected to know when his debtor becomes insolvent, as it is prescribed by the Act that the adjudication order should be published in the Government Gazette, and if he wishes to get the insolvent examined, the Application should be made before the insolvent applies for his discharge. The application for examination is refused but on the report of the Official Assignee the insolvent's discharge is postponed for one year.


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