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Gopalakrishnan Iyer Vs. Padmanabhan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 1347 of 1970
Judge
Reported inAIR1972Ker96
ActsProvincial Insolvency Act, 1920 - Sections 10(2)
AppellantGopalakrishnan Iyer
RespondentPadmanabhan
Appellant Advocate K. Sreedhran, Adv.
Respondent Advocate P. Sukumaran Nair, Adv.
DispositionRevision dismissed
Excerpt:
- - but that adjudication was annulled on 6-3-1964 for failure on his part to apply for discharge. such court shall not grant leave unless it is satisfied either that the debtor was prevented by any reasonable cause from presenting or prosecuting his application, as the case may be or that the petition is founded on facts substantially different from those contained in the petition on which the order of adjudication was made. ' learned district judge in appeal has observed that issue of notice is not contemplated in the above section and all that the court is expected to do is to get itself satisfied that the debtor was prevented by reasonable cause etc......of section 10 (2) of the insolvency act which pertains to this matter is 'shall not be entitled to present an insolvency petition.' the dictionary meaning of 'present' is to bring formally under notice, or submit or give (thing to person) as present etc. in the present instance, from the office note on i-p. 2 of 1965 it is seen that the petition was filed as insolvency petition no. 2 of 1965 on 31-5-1965. but the judge ordered notice on the petition only on 1-6-1965. the word 'file' according to law lexicon means to deposit with the proper custodian for keeping; to place in the official custody of the clerk; to put upon the files or among the records of a court. 'filing' and 'presentation' thus connote two different stages in the proceeding. the petition was filed as already stated, on.....
Judgment:
ORDER

K. Sadasivan, J.

1. The second counter-petitioner in I. P. No. 2 of 1965 on the file of the Subordinate Judge's Court, Tri-vandrum, is the revision-petitioner. The petitioner in the insolvency proceedings had filed I. P. No. 6 of 1961, and he was adjudicated insolvent. But that adjudication was annulled on 6-3-1964 for failure on his part to apply for discharge. So, I. P. No. 2 of 1965 was filed by him and he has again been adjudicated insolvent. The second counter-petitioner objected and the main points raised by him are:

(1) that the adjudication in I. P. 2 of 1965 was made without the leave of the Court by which the order of adjudication was annulled; and

(2) that Ext. P-1 order passed on 1-6-1965 according sanction to the insolvent was passed without notice to him, and as such it is a violation of the principles of natural justice. The learned Subordinate Judge found against the revision petitioner on both the points which on appeal has been confirmed by the learned appellate Judge.

2. On the first point learned counsel would argue that the petitioner is not entitled to present the second petition without the leave of the court by which the order of adjudication was annulled; in other words, his point is that the sanction of the court which annulled the first proceedings, should accompany the second application. The wording of Section 10 (2) of the Insolvency Act which pertains to this matter is 'shall not be entitled to present an Insolvency petition.' The dictionary meaning of 'present' is to bring formally under notice, or submit or give (thing to person) as present etc. In the present instance, from the office note on I-P. 2 of 1965 it is seen that the petition was filed as Insolvency Petition No. 2 of 1965 on 31-5-1965. But the Judge ordered notice on the petition only on 1-6-1965. The word 'file' according to Law Lexicon means to deposit with the proper custodian for keeping; to place in the official custody of the clerk; to put upon the files or among the records of a court. 'Filing' and 'presentation' thus connote two different stages in the proceeding. The petition was filed as already stated, on 31-5-1965 i. e., it was put upon the file or among the records of the court. But presentation comes only on 1-6-1965 when the petition was placed before the presiding officer for his orders and on that date the sanction Ext P-1 had already been passed. I see, therefore, no substance in the contention that the requirement of Section 10 (2) of the Insolvency Act has not been complied with.

3. The next contention relates to part II of Section 10 (2) of the Act. The argument is that the court has granted leave without hearing the respondent, and without even issuing notice to him.

'Such Court shall not grant leave unless it is satisfied either that the debtor was prevented by any reasonable cause from presenting or prosecuting his application, as the case may be or that the petition is founded on facts substantially different from those contained in the petition on which the order of adjudication was made.'

Learned District Judge in appeal has observed that issue of notice is not contemplated in the above section and all that the court is expected to do is to get itself satisfied that the debtor was prevented by reasonable cause etc., as stated in the section. This. I do not think, is a correct approach to the question. The opposite party must normally be given an opportunity to have a say in the matter. He might be able to satisfy the court that the petitioner was not prevented by any reasonable cause from presenting or prosecuting his application or that the petition is founded on facts substantially different from those contained in the previous petition. This is possible only when notice is served on the other side. But in the present case, the counter-petitioner seems to have acquiesced in the matter as is seen from the proceedings. The order Ext. P-l was passed, as already stated, on 1-6-1965 but the order of adjudication under the second application was made on 10-1-1968 and in the interval, there were innumerable postings of the matter. If he wanted, he could have taken up Ext. P-l order in appeal or revision before higher authority. Having not done that, he is not entitled to challenge the order at this stage. The finding of the court below on the above two points is hence correct, and in confirmation of the order this revision petition is dismissed.


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