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The Gadag Co-operative Cotton Sale Society Ltd. and anr. Vs. Annigeri Agricultural Produce Co-operative Sale Society Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 544 to 548 of 1969
Judge
Reported inAIR1971Kant233; AIR1971Mys233; (1971)1MysLJ197
ActsProvincial Insolvency Act, 1920 - Sections 75(1)
AppellantThe Gadag Co-operative Cotton Sale Society Ltd. and anr.
RespondentAnnigeri Agricultural Produce Co-operative Sale Society Ltd. and ors.
Appellant AdvocateH.B. Datar, Adv.
Respondent AdvocateK.R. Karanth, Adv.
DispositionPetition Dismissed
Excerpt:
.....medical expenses and rs.8,000/- towards loss of earnings for 2 months totalling to rs.78,500/- - appeal for enhancement held, the tribunal practiced miserliness in awarding compensation of rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. the joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. the impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that..........allowed the amendment in its order dated 2-11-1968, and, in the same order, it has held that the insolvency petitions are maintainable only against the major members but dismissed the same so far as they are directed against the minors. aggrieved by this order, the other creditors nos. 1 and 2 have filed the above revision petitions. that part of the order dismissing the insolvency applications against the minors is rightly not challenged before me by anyone.3. mr. k. r. d. karanth, learned counsel for the first respondent, has raised a preliminary objection against the maintainability of these petitions on the ground that the order of the lower court is appealable under section 75 of the provincial insolvency act. it is, therefore, necessary to decide this point first before entering.....
Judgment:
ORDER

K. Jagannatha Shetty, J.

1. These five revisions arise out of a common order passed by the learned Civil Judge, Dharwar, in the exercise of insolvency jurisdiction.

2. A few facts leading to these petitions may briefly be stated:

One Sha Velji Kanji died on 2-12-1937, leaving behind some properties and also debts due to some Co-operative Societies. His Legal representatives are said to have transferred all those properties in favour of a few creditors without making any arrangements for the payment of the debts of others who, therefore, filed insolvency applications under Section 9 of the Provincial Insolvency Act, against the wife, two daughters, son-in-law and five minor children of the deceased debtor. The opponents contended that the petitions against them were not maintainable as they do not come within the meaning of debtors who have committed any act of insolvency. An application for amendment raising some additional grounds so as to bind the opponents personally, was also filed by one of the creditors- The lower Court allowed the amendment in its order dated 2-11-1968, and, in the same order, it has held that the insolvency petitions are maintainable only against the major members but dismissed the same so far as they are directed against the minors. Aggrieved by this order, the other creditors Nos. 1 and 2 have filed the above revision petitions. That part of the order dismissing the insolvency applications against the minors is rightly not challenged before me by anyone.

3. Mr. K. R. D. Karanth, learned counsel for the first respondent, has raised a preliminary objection against the maintainability of these petitions on the ground that the order of the lower court is appealable under Section 75 of the Provincial Insolvency Act. It is, therefore, necessary to decide this point first before entering into the merit of the other contentions.

4. The Provincial Insolvency Act is a special enactment creating a special court and in the matter of appeals in insolvency cases, we must look into the provisions of Section 75 of the Act. The relevant portion of Section 75 of the Act runs as follows:--

'75. Appeals -- (1) The debtor, any creditor, the receiver or any other person aggrieved by a decision come to or an order made in the exercise of insolvency jurisdiction by a court subordinate to a District Court may appeal to the District Court, and the order or the District Court upon such appeal shall be final:

Provided that the High Court, for the purpose of satisfying itself that an order made in any appeal decided by the District Court was according to law, may call for the case and pass such order with respect thereto as it thinks fit:

* * * * The order impugned in the instant case was passed by the court of the Civil Judge in the exercise of its insolvency Jurisdiction and that court is undisputedly subordinate to the District Court. If, therefore, that order is appealable, then, the appeal must lie, in the first instance, to the District Court. The question is whether the finding given by the insolvency court about the maintainability of the petition is either a 'decision' or an 'order within the meaning of Section 75(1)'.

5. The scope of the Section came up for consideration before several High Courts. In Wamanrao Deorao v. Shrikumar Jaikumar AIR 1946 Nag 42, a Bench of the Nagpur High Court has held that a finding of the court that it has got jurisdiction to entertain the insolvency petition, amounts to a decision within the meaning or Section 75(1) of the Act, even though it does not dispose of the entire claim.

In Madanlal Jhunjhunwala v. Reza All Khan : AIR1940Cal244 , Narsing Rau, J., of the Calcutta High Court (concurring with Nasim Ali J.), said that under Section 75(1), a person aggrieved by the preliminary decision on the point of jurisdiction has a right of appeal from that decision and was under no obligation to appeal only against the final order of adjudication.

Similar is the reasoning of a Single Judge of the Punjab High Court in Jagat Dhis Bhargawa v. Bakshi Gurcharan Singh . The High Court of Madras has, however, taken a contrary view.

In K. Lakshmappa v. Tulasanl Venkata Reddi AIR 1942 Mad 305, Patanjali Sastry, J., (Wadsworth, J., concurring), said:

'While we are sensible of the difficulty of stating in sufficiently clear-cut and definite terms what is and what is not an order for the purpose of Section 75, Provincial Insolvency Act, we are convinced that the recording of the mere finding, albeit in a formal manner, that the court has jurisdiction to entertain an application cannot be deemed to be an order within the meaning of that Section. A decision upon Jurisdiction has only the effect of regulating procedure and, where it is not sufficient to dispose of the application, hardly stands on a different footing from a ruling as to the admissibility of a document tendered or the relevancy of a question put and objected to in the course of the trial.

6. In the present case, however, the order passed by the lower court holding that the insolvency petitions are maintainable against the opponents, who are majors, does not merely deal with the Jurisdiction of the court to entertain the petitions. Nor can it be said to be an order just regulating the procedure of the court It decides some question touching on the merits of the application. Even otherwise, speaking generally, and not with reference to any particular case, I feel that there is no reason why an order of so fundamental an issue as that of Jurisdiction of a court to entertain the petition, cannot be said to be an 'order' or a 'decision' within the meaning of Section 75 of the Act. I would, therefore, prefer the view expressed by the High Courts of Nagpur, Calcutta and Punjab.

7. In the Act, there is no definition of the words 'decision' or 'order'. Prima facie, they appear to be very wide. Provisions similar to that of Section 75(1) of the Act are also found in other enactments. Reference may be made to Section 202 of the Companies Act, 1913, conferring a right of appeal against an 'order' or 'decision' made or given in the matter of winding up of a company. In dealing with the scope or this provision, the Supreme Court in Shankarlal Aggarwala v. Shankarlal Poddar : [1964]1SCR717 , has observed thus:--

'....... .the words 'order or decision'

occurring in the first part of Section 202 though wide, would exclude merely procedural orders or those which do not affect the rights or liabilities of parties.' Similar considerations have induced the Supreme Court to give a limited construction on the apparently wide words occurring in Section 38(1) of the Delhi Rent Control Act, conferring a right of appeal from 'every order of the controller' made under that Act. (vide the Central Bank of India Ltd. v. Gokalchand : [1967]1SCR310 ).

8. In the light of the aforesaid observations, of the Supreme Court, I am of the opinion that the provisions of Section 75(1) of the Act must also be given a restricted meaning. Every order made by the Insolvency Court is not appeal able, unless it affects some right or liability of any party. The section must, therefore, exclude all interlocutory orders regulating the procedure of the Court and which do not affect some right or liability of any party. Viewed from the above tests, the impugned order is certainly one which affects the rights of the parties to the insolvency petitions and hence it is appeal able under Section 75(1) of the Act.

9. In the result, I hold that these revision petitions are not maintainable. They are dismissed without costs. Since the law was not very clear on the point, I direct that if the appeals are filed before the District Judge within one month from to-day, the appellate court may condone the delay in filing the appeals and the appeals so presented may be disposed of as expeditiously as possible as the insolvency petitions have been pending since 1958.


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