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Gangjee Premjee and Company Through Its Partner Devshi Munji Vs. O.L.K.K.N. Firm Constisting of Partners Kannappa Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtChennai
Decided On
Reported inAIR1932Mad352; 137Ind.Cas.740; (1932)63MLJ152
AppellantGangjee Premjee and Company Through Its Partner Devshi Munji
RespondentO.L.K.K.N. Firm Constisting of Partners Kannappa Chettiar and ors.
Cases ReferredIn Aiyapparaju v. Venkatakrishnayya
Excerpt:
- - under section 8 the court may be moved to appoint a guardian by an 'application' and under section 10 the 'application' may be made by a 'petition'.and, what is perhaps even more interesting for our purpose, as mr. rajah aiyar that the word 'petition' may have crept into this new amendment by oversight, the legislature not remembering, when the amendment was made, that in this particular act a distinction had been drawn between the use of the word 'petition' and the use of the word 'application'.but i do not think we are entitled to attribute oversight to the legislature unless that is clearly necessary. there are other explanations why a proceeding under section 54-a of the act, and so by implication a proceeding under section 53 or section 54 should be described as instituted by.....reilly, j.1. this civil revision petition relates to a creditor's insolvency petition presented to the subordinate judge of ramnad. that petition alleged a preferential transfer as the act of insolvency necessary to support it; but the date of that transfer according to the document representing it was more than three months before the date on which the insolvency petition was presented. so with their insolvency petition the creditors presented a petition to excuse the delay under section 5 of the limitation act. that petition the subordinate judge dismissed. on appeal the district judge, feeling himself bound by the decision of a bench of this court in a.a.o. no. 523 of 1925, held that section 5 of the limitation act applied to the case and reversed the subordinate judge's order and.....
Judgment:

Reilly, J.

1. This Civil Revision Petition relates to a creditor's insolvency petition presented to the Subordinate Judge of Ramnad. That petition alleged a preferential transfer as the act of insolvency necessary to support it; but the date of that transfer according to the document representing it was more than three months before the date on which the insolvency petition was presented. So with their insolvency petition the creditors presented a petition to excuse the delay under Section 5 of the Limitation Act. That petition the Subordinate Judge dismissed. On appeal the District Judge, feeling himself bound by the decision of a Bench of this Court in A.A.O. No. 523 of 1925, held that Section 5 of the Limitation Act applied to the case and reversed the Subordinate Judge's order and remanded the petition to excuse the delay for fresh disposal. The present Civil Revision Petition is preferred by the transferee concerned against the District Judge's remand order.

2. It was decided by a Full Bench of this Court in Lingayya v. Chinna Narayana I.L.R. (1917) 41 M. 169 : 33 M.L.J. 566 before the present Provincial Insolvency Act of 1920 came into force, that S,. 5 and other general provisions of the Limitation Act did not apply to insolvency petitions. When the present Provincial Insolvency Act was enacted, a new provision was introduced in Section 78 of the Act, the opening words of which are:

The provisions of Sections 5 and 12 of the Indian Limitation Act, 1908, shall apply to appeals and applications under this Act.

3. It is contended for the petitioning creditors in this case that under that provision Section 5 of the Limitation Act can be applied to their petition for the adjudication of the debtor. It will be noticed that the new provision in Section 78 of the Provincial Insolvency Act relates to appeals and applications only, as indeed does Section 5 of the Limitation Act. The petitioner before us, the transferee concerned, contends that a creditor's insolvency petition praying that a debtor may be adjudged insolvent is not an application within the meaning of Section 78 of the Provincial Insolvency Act. In considering that question I think in the first place we have to remember that Section 5 of the Limitation Act is in itself an exception to Section 3 of that Act, which directs that suits, appeals and applications presented after the expiry of the periods of limitation prescribed shall be dismissed, and being a provision enacting an exception to a general rule it has to be strictly construed. And in the same way Section 78 of the Provincial Insolvency Act, so far as it applies to Section 5 of the Limitation Act, must also be strictly construed. Remembering that, does the word 'application' in Section 78 of the Provincial Insolvency Act include insolvency petitions, i.e., petitions praying that a debtor may be adjudged insolvent?

4. Speaking generally, I do not think we can say that in legal phraseology a petition is not an application. Mr. Sitarama Rao for the creditors has pointed out to us that the words are in legislation applicable to this country often interchangeable. In the Limitation Act it must be noticed that there is no reference to petitions at all, although it cannot be supposed that there is no law of limitation applicable to petitions. Petitions, so far as they are governed by the Limitation Act, are included in the word 'applications'. Sections 8, 9 and 10 of the Guardians and Wards Act show that an 'application' may be a petition. Under Section 8 the Court may be moved to appoint a guardian by an 'application' and under Section 10 the 'application' may be made by a 'petition'. And, what is perhaps even more interesting for our purpose, as Mr. Sitarama Rao has been able to point out, in Section 55 of the Code of Civil Procedure, the expression 'apply to be adjudged an insolvent' appears in Sub-sections (3) and (4). Therefore, speaking generally in regard to the Acts applicable to this country, I think it is impossible to say that there is any necessary distinction between an application to a Court and a petition to a Court. For the convenience of the organisation of Court records and general administration there are certain rules in force in this Presidency that the term 'petition' shall be used for what may be called originating motions, either in execution or otherwise, and that the term 'application' shall be used for motions made in pending proceedings. But in this Court itself that rule is not strictly followed. On the Appellate Side of the Court it is not followed at all, as we ordinarily call interlocutory applications in pending proceedings Civil Miscellaneous Petitions. But Mr. Rajah Aiyar for the petitioner here urges that, whatever may be the general practice either in Courts or in legislation in the use of these two words, 'application' and 'petition', in the Provincial Insolvency Act there is a very definite distinction drawn between them. He has been able to show us that in the Provincial Insolvency Act of 1920, as it was enacted, 'petition' is used for either a debtor's or a creditor's insolvency petition, praying that the debtor may be adjudged insolvent, but is never used for any application to the Court in the course of insolvency proceedings already instituted. That 'petition' should be used for an application praying that a debtor may be adjudged insolvent, which thereby institutes insolvency proceedings, and that all applications in pending insolvency proceedings should be described in the Act as 'applications' appears to have been a deliberate choice of language. It becomes particularly remarkable when we look at Sections 10 (2) and 52, in both of which the word 'petition' and the word 'application' occur, 'petition' being reserved as elsewhere in the Act for a petition that the debtor be adjudged insolvent. Those two sections emphasise what appears to be a deliberate contrast in the use of the two words. In Section 6(f) there is a small point which may be noticed. It is there stated that a debtor commits an act of insolvency if he 'petitions' to be adjudged an insolvent. 'Petitions' is an awkward and ugly word, not likely to have been used in place of the ordinary word 'applies', unless there was some special reason for using it. And the reason appears to be that even in that statement the Legislature wished to maintain the distinction between a 'petition' and an 'application' which runs right through the rest of the Act.

5. That was the position in regard to the use of these words, as the Act stood when it was first enacted. It happens, however, that in 1926 a new Section 54-A was introduced in order to allow a creditor to prosecute a petition to have a transfer set aside under Section 53 or Section 54 of the Act if the Official Receiver declines to do so. In that new section the opening words are:

A petition for the annulment of any transfer under Section 53, or of any transfer, payment, obligation or judicial proceeding under Section 54.

6. There we have for the first time in this Act the use of the word 'petition' for something other than a petition that the debtor may be adjudged insolvent. The contrast between such a petition for adjudication and any other application to the Court, which had been maintained so far by the use of the two different words, 'petition' and 'application', was infringed when this amendment was introduced. Mr. Sitarama Rao for the creditors not unnaturally contends that the contrast on which Mr. Rajah Aiyar has based his argument here breaks down. It is a remarkable fact that 'petition' was introduced in that way in the new section. But I think we must remember that what we are trying to do now is to interpret the word 'application' as it appears in Section 78 of the Act. Section 78 of the Act was there when the Act was originally issued in 1920, and the fact that there was the marked contrast between the use of the word 'petition' and the use of the word 'application' when the Act was issued in 1920 is not destroyed by a different use of the word 'petition' in the amendment introduced six years later. It has also been suggested by Mr. Rajah Aiyar that the word 'petition' may have crept into this new amendment by oversight, the Legislature not remembering, when the amendment was made, that in this particular Act a distinction had been drawn between the use of the word 'petition' and the use of the word 'application'. But I do not think we are entitled to attribute oversight to the Legislature unless that is clearly necessary. There are other explanations why a proceeding under Section 54-A of the Act, and so by implication a proceeding under Section 53 or Section 54 should be described as instituted by 'petition' rather than by 'application'. If 'petition' was reserved purposely by the Legislature for some motion originating proceedings, then it might well lie used in connection with proceedings under Sections 53 and 54, as, though connected with insolvency proceedings and possible only while insolvency proceedings are pending, they are really new proceedings originated against outside parties; and in that sense it is not inconsistent with the distinction which Mr. Rajah Aiyar wishes to draw between 'petition' and 'application' that such proceedings should be initiated by 'petitions'. And it may also be remarked that for such proceedings, so long as insolvency proceedings are going on, there is no period of limitation, and therefore the Legislature may even have used the word 'petition' in Section 54-A advisedly, so as to make it clear that they are outside the scope of Section 78. On the whole I do not think that the use of the word 'petition' in the new Section 54-A is sufficient to destroy the strong contrast maintained through the Act as originally framed between a 'petition' praying that a debtor be adjudged insolvent and other applications made in the course of insolvency proceedings.

7. So much for the mere words used. But there may well be, as Mr. Rajah Aiyar suggests, good reason behind the choice of the word 'application' rather than 'petition' in Section 78. According to the scheme of the Act a petition praying that a debtor be adjudged insolvent initiates very important litigation. By Section 12 of the Act it is required that such a petition shall be signed and verified as if it were a plaint. And under Section 18 of the Act it is provided that the procedure in regard to the admission of plaints shall be applied to such petitions. Those two sections recognise that an insolvency petition, praying that a debtor be adjudged insolvent, is not only the beginning of very important litigation, but is of as much importance as a plaint. Indeed, as we know, it may often be of much more importance than a plaint : it may initiate something equal to a whole bundle of suits. If, as appears from these provisions of the Act, the Legislature intended an insolvency petition praying that a debtor be adjudged insolvent to be treated as a plaint in a suit, of as great importance as a plaint in a suit, then there would be good reason for using language which would make it clear that Section 5 of the Limitation Act, though being applied by the new Section 78 to other matters in connection with insolvency proceedings, that is to appeals and applications, should not be applied to initiating insolvency petitions. Section 5 of the Limitation Act, as is well known, has no application to suits. It does not give the Court any power to extend the period of limitation for instituting a suit; but it does give the Court power on sufficient cause to extend the time for filing an appeal or an application in litigation which has already been properly instituted by suit. When a party has come to Court with his suit in time, then he or other parties to the suit, who are conducting their proceedings under the control of the Court, are allowed to ask for extension of time under Section 5 of the Limitation Act, for sufficient cause, and the Court may grant such extensions at its discretion. But it is no part of the Limitation Act - indeed it is against the object of the Limitation Act - that the Court should have discretion to extend the periods of limitation for initiating suits. If the Court had power to do that, then one of the main objects of the law of limitation in giving security to titles would be defeated. And in the same way, if the Court had discretion to enlarge the time after an act of insolvency within which a creditor's insolvency petition must be filed, the security of many transactions might be imperilled. The acts of insolvency which may be used as one of the justifications for a creditor's petition include even the sale of property in execution of a decree. If a debtor's property is sold in execution of a decree, for three months after that is done, it is possible that a petition to adjudge him insolvent may be filed. But after that period other persons doing business with him know that that danger is gone. If the Court had discretion to extend that period of three months, very serious results to merchants and others dealing with a judgment-debtor might happen. It is therefore, quite reasonable that, as Section 5 is not applicable to suits, so it should not be applicable to creditor's insolvency petitions.

8. However the learned District Judge, as I have mentioned, felt that he was bound by the decision in A.A.O. No. 523 of 1925. And on that decision Mr. Sitarama Rao has relied before us. In that case no doubt the two learned Judges were of opinion that Section 5 applied to a creditor's petition to adjudge a debtor insolvent. The actual question before them was whether the refusal of the District Judge to apply Section 14 pf the Limitation Act to such a petition was proper. They were of opinion that Section 14 of the Limitation Act did not apply to such an insolvency petition, and they dismissed the appeal before them. But in the course of their judgment they expressed the opinion that Section 5 of the Limitation Act may be applied to such insolvency petitions, though in the end they came to the conclusion that the circumstances of that case were not such as to justify the application of that section. I think that Mr. Rajah Aiyar is justified in saying that the expression of the learned Judge's opinion in that case to the effect that Section 5 of the Limitation Act applies to a creditor's insolvency petition was obiter dictum. And I may perhaps also remark with great respect that in that case the learned Judges did not find it necessary to discuss the wording of the Provincial Insolvency Act in the provisions concerned nor did they note the contrast between the vise of the word 'petition' and the use of the word 'application', which I have mentioned. And it may be added that this Revision Petition comes before us because it has been referred to a Bench by Jackson, J., who delivered the judgment in A.A.O. No. 523 of 1925 and who it appears therefore does not himself regard that as a binding decision on the present question. On the other hand Cornish, J., in Vaithinatha Aiyar v. Vaithinatha Aiyar : (1931)61MLJ544 , sitting alone decided that Section 5 of the Limitation Act did not apply to a creditor's insolvency petition. In my opinion Cornish, J.'s view on that matter should be followed. I may add that it has been pointed out to us that the only specific provisions regarding limitation in the Provincial Insolvency Act are contained in Section 68, relating to applications against orders made by Receivers, and Section 75, relating to appeals. It has been suggested that that may explain why it was thought necessary in Section 78 to refer only to appeals and applications. That also is an argument which, I think, supports the view I have taken regarding Section 5 of the Limitation Act.

9. There was another part of Mr. Rajah Aiyar's argument with which I do not think I need deal in any detail on this occasion. He contended that Section 9(1)(c) of the Provincial Insolvency' Act, which provides that the act of insolvency on which the petition is grounded must have occurred, within three months before the presentation of the petition, does not prescribe any period of limitation within the meaning of Section 5 of the Limitation Act. If that is so, of course any other discussion of the question is unnecessary. His argument is that Section 9 does not provide a period of limitation but does by its wording provide a condition precedent, which must be fulfilled before a creditor can prefer an insolvency petition. That section lays down that a creditor shall not be entitled to present an insolvency petition against a debtor unless the debt is Rs. 500, unless it is a liquidated sum and unless the act of insolvency has occurred within three months. Now in form that section undoubtedly does not lay down any explicit rule of limitation. It does not say that, if the petition is not filed within a certain period, it shall be dismissed. In form and in language it does lay down three conditions precedent, as Mr. Rajah Aiyar contends. And I may mention that Mr. Rajah Aiyar's view that this section does not provide a period of limitation was adopted by Spencer, J., in Aiyapparaju v. Venkatakrishnayya (1922) 4 M.L.J. 303. But, although in form what we find in the section is a statement of conditions precedent and not a rule of limitation, as Mr. Sitarama Rao has pointed out, in effect we get to very much the same thing as a rule of limitation, namely that, unless a creditor files his petition within three months after the act of insolvency, it must be dismissed, which has just the effect of a rule of limitation. But I do not regard this question, whether Section 9 of the Provincial Insolvency Act does lay down a rule of limitation, as at all an easy one, and I do not wish to express any decided opinion upon it on this occasion. If we were to find that Section 9 of the Provincial Insolvency Act did not prescribe any period of limitation, then very serious consequences would follow. Among other things Section 14 of the Limitation Act would not affect such insolvency petitions by reason of Section 29 of the Limitation Act, as it might otherwise do. It is not necessary, I think, to go into this difficult question and its consequences on this occasion, as all that we are concerned with now is the question whether Section 5 of the Limitation Act applies to a creditor's insolvency petition. And on that question I agree with Mr. Rajah Aiyar's contention that it does not apply.

10. In my opinion, therefore, this petition should be allowed with costs in this Court and the remand order of the learned District Judge should be set aside.

Anantakrishna Aiyar, J.

11. Certain creditors of a debtor filed a petition under the Provincial Insolvency Act to have the debtor adjudicated an insolvent on the ground that he had executed a mortgage in favour of some one creditor, alleging that the mortgage constituted a fraudulent preference under Section 54 of the Provincial Insolvency Act; but, as the date mentioned in the mortgage deed was beyond three months from the date of the petition, the petitioners applied to have the delay excused under Section 5 of the Limitation Act read with Section 78 of the Provincial Insolvency Act. The learned Subordinate Judge held that the Court had no jurisdiction to apply Section 5 of the Limitation Act to petitions under the Insolvency Act. He accordingly dismissed the petition. On appeal by the petitioning creditors, the learned District Judge reversed that decision and remanded the petition for rehearing on the merits whether there was sufficient cause to excuse the delay. He relied on the decision of a Bench of this Court in C.M.A. No. 523 of 1925 Peddapalli Samacharlu v. Yarrajimi Siddappa and held that Section 5 of the Limitation Act was applicable to a petition filed by a creditor under Section 9 of the Insolvency Act. The mortgagee has preferred this revision petition against the decision of the District Judge, under Section 75 of the Provincial Insolvency Act.

12. Mr. Rajah Aiyar, who appeared for the mortgagee, based his case on two grounds: (1) that Section 5 of the Limitation Act does not apply to the petition in question; and (2) that the period of three months mentioned in Section 9 of the Insolvency Act is not 'a period of limitation' within the meaning of Section 5 of the Limitation Act, and consequently no question of limitation arises in the case, his contention being that after the expiry of three months, the transaction which would otherwise be available to ground the insolvency petition would not be available at all as such.

13. On the question whether Section 5 of the Limitation Act applies to the present case, it may be stated that under the previous Provincial Insolvency Act (III of 1907) it was held by a Full Bench of this Court in Lingayya v. Chinna Narayana I.L.R. (1917) 41 Mad. 169 : 33 M.L.J. 566 that the general provisions of the Limitation Act dealing with the admission of appeals and applications filed after the periods prescribed for the same could not be applied to extend the periods prescribed by the provisions of Act III of 1907 for filing of appeals, etc. The view of the Full Bench was that the Insolvency Act was a special Act complete in itself, and that the general provisions of the Limitation Act could not be held applicable to proceedings taken under that Insolvency Act. After that decision, Section 78 has been enacted in the present Provincial Insolvency Act of 1920 to the effect that the provisions of Sections 5 and 12 of the Indian Limitation Act of 1908 shall apply to 'appeals and applications under the Insolvency Act'.

14. On behalf of the respondents, it was argued that the provisions of Section 5 of the Limitation Act should now be held to apply to the 'petition' filed by the creditors under Section 9 of the Insolvency Act. Mr. Rajah Aiyar contended that Section 78 applies only to 'appeals' and 'applications' under the Insolvency Act, and that a 'petition' under Section 9 is not 'an application' but 'a petition' under the Act. At first sight it appeared to me that the petitioner before us was trying to make too much out of the use of the two different words - 'petitions' and 'applications' in the Insolvency Act - and I was anxious to find out whether these words have any accepted definite legal signification, and whether the two words connote essentially different ideas. These words are not defined in the General Clauses Act, nor in the Code of Civil Procedure, the Limitation Act or in the Insolvency Act.

15. Referring to Wharton's Law Lexicon, I find the following : 'Application' is 'a request, a motion to a Court or Judge; for the disposal of a thing.'

16. As against 'petitions' it is stated 'a supplication made by an inferior to a superior having jurisdiction to grant redress'. It is further stated that 'in Bankruptcy, proceedings are commenced by one or more creditors of the debtor filing a petition in the Court of Bankruptcy praying that the debtor may be adjudged bankrupt. Divorce, etc., proceedings are commenced by petition.' Mention is also made of Election Petitions. The 'petitioning creditor' is said to be 'one who applies for an adjudication in bankruptcy against his debtor'. It was contended by the learned advocate for the respondents that the word 'application' as used in the Insolvency Act has no technical meaning and that it is the same as 'petition' and he referred us to certain other enactments of the Indian Legislature. In Section 55, Clauses (3) and (4), Civil Procedure Code, it is stated that the Court, before whom a judgment-debtor arrested in execution of a decree for money is brought, shall inform him that he may 'apply' to be declared insolvent. Order 45, Rule 2 relating to appeals to the Privy Council, was also referred to, where the words used are 'the appellant shall apply by petition'. (The italics are mine.) Further, the provisions of the Guardians and Wards Act, Sections 8 and 10, were also referred to. In Section 10 it is mentioned that 'if the application is not made by the Collector, it shall be by petition, signed and verified etc.' It is not necessary to examine how these words are used in other enactments by the Legislature, and whether each of these words has a definite well-recognized meaning, different from the other. No doubt in the Civil Rules of Practice framed by this Court for the guidance of the Lower Courts in the Presidency as to how proceedings should be marked for convenience and uniformity, a distinction has been made between a 'petition' and an 'application'; for example, between an 'execution petition' and an 'execution application', the latter phraseology being applied to the media by which further and other steps are sought to be taken in the main matter of execution and in a pending execution petition. But in construing an Act passed by the Indian Legislature, this practice in our Presidency should not be allowed to have any consideration at all. Again, as observed by the Privy Council in Adamson v. Melbourne and Metropolitan Board of Works (1929) A.C. 142 when a word has no definite and well understood legal signification, 'it is always unsatisfactory and generally unsafe to seek the meaning of words used in an Act of Parliament in the definition clauses of other statutes dealing with matters more or less cognate, even when enacted by the same Legislature. A fortiori must it be so when resort is had for this purpose to the enactments of other Legislatures.'

17. In the circumstances, it seems to me that we must, therefore, turn to the provisions of the Provincial Insolvency Act, 1920, to find out whether any light is thrown on this matter by the provisions contained therein. On a reading of the several sections of the Act, one thing is clear that the Legislature in this Act has used the words 'petition' and 'application' intentionally prima facie differently. It is not necessary to refer to all the relevant sections. It is enough to refer among others to Sections 7, 19, 20, 12 and 18 where the word 'petition' is used and to Sections 27, 31, 35, 41, 68, where the term 'application' is used. We also find that the two terms are used side by side in each of the two Sections 10(2) and 52. Schedule I also speaks of a 'petition' and of an 'application'. I do not propose to lay any emphasis on the rules framed by this High Court under the Act, where the words 'petition' and 'application' are used separately. See Rule 5, 8, 14, etc., for example. The term 'petition' is apparently used in the Act to denote that by which the proceeding is inaugurated and begun; whereas the term 'application' is used to denote that by which intermediate steps are taken in connection with an original proceeding. Section 18 enacts that the procedure laid down in the Code of Civil Procedure with reference to admission of plaints shall, so far as it is applicable, be followed in the case of insolvency petitions; and Section 12 enacts that

every insolvency petition shall be in writing and shall be signed and verified in the manner prescribed by the Code of Civil Procedure for signing and verifying plaints.

18. Having regard to the use of these two terms 'petition' and 'application' differently in the various sections of the Act, I am led to think that the two words have been used purposely to denote two different matters, and that Section 78 of the Provincial Insolvency Act which makes the provisions of Section 5 of the Limitation Act applicable to 'applications' under the Insolvency Act could not be called in aid in connection with 'petitions' under the Insolvency Act. Our attention was, however, drawn by the learned advocate for the respondents to the use of the word 'petition' in Section 54-A, which circumstance, he argued, is rather against this view. I am not sure that it is so. Section 54-A was added by Act XXXIX of 1926. The distinction between 'petition' and 'application' existed when the Act was passed in 1920. For the purpose of this Act, that distinction does not disappear by the enactment of Section 54-A, whatever light it may throw on the Act as a whole. It is possible that the word 'petition' was used in connection with Section 54-A purposely with a view to point out that proceedings contemplated under that section are to be treated as in the nature of original petitions and to be inquired into and tried accordingly, having regard to their importance and seeing that third parties are interested in the same; but, in any event, the use of the word 'petition' in Section 54-A is not, in my opinion, in any way conclusive to show that the words 'petition' and 'application' have been used indiscriminately in the Provincial Insolvency Act.

19. It should be noted that Section 5 of the Limitation Act does not apply to 'plaints' but applies only to 'appeals and applications'. It is clear, therefore, that the Court has no power under Section 5 to excuse delay in the filing of a 'plaint'. In cases of minority, fraud, etc., the period of limitation is extended and it is provided that there would be no limitation bar under the provisions of the Act if the necessary deductions on ground of minority, fraud, etc., be made, whereas under Section 5, the Court excuses the delay, having regard to the circumstances proved before it, holding that the proceedings are barred otherwise. Petitions filed by creditors under Section 9 of the Insolvency Act are substantially in the nature of plaints. If that be so, one can understand why the Legislature did not provide for the application of Section 5 to such petitions when it enacted Section 78 of the. Act. Prima facie it would be strange that the Court which could not, under Section 5, excuse delay in filing a 'plaint' could excuse delay in the filing of an 'original petition', in respect of which, according to the assumption, a period of limitation has been prescribed. Thus, it would seem that the Legislature had a purpose in the use of the words 'petition' and 'application' in the material sections of the Provincial Insolvency Act, and it is not open to Courts, in the absence of clear and cogent indications in the Act to the contrary, to ignore the distinction made by the Legislature.

20. The learned advocate for the respondents relied on the decision of a Bench of this Court in C.M.A. No. 523 of 1925, decided by Devadoss and Jackson, JJ. The question for decision in that case was whether the petitioning creditor was entitled to the deduction of the time during which the petition filed by him was pending in a Munsif's Court, which had no jurisdiction to entertain that petition. While holding that Section 14 did not apply, the learned Judges were of opinion that Section 5 would apply, and holding that no sufficient cause for not making the application earlier had been shown, they dismissed the petition on the merits. That decision is entitled to great weight, and ordinarily, another Bench would follow the same. But reading the judgment of the learned Judges, it will be seen that the various provisions of the Insolvency Act where the words 'petition' and 'application' are used have not been noticed, nor does the judgment discuss the real nature of the creditor's petition. In fact, the judgment of the Court was delivered by the learned Judge, Jackson, J. and the same learned Judge before whom the present Civil Revision Petition came on for hearing directed that the question should be considered by a Bench of two Judges. If the learned Judge thought that the decision in the unreported case referred to above governed the case and should be followed, it was of course open to him to follow it, (as the Lower Appellate Court has done in the present case), and dismiss the Revision Petition. Instead of that, the learned Judge directed the case to be posted before a Bench, with a view, as I understand the position, to have the question of law re-examined by the Bench. In the circumstances, I do not think that it is not open to us to examine the question in the light of the further considerations placed before us.

21. Our attention was drawn to the case reported in Vaithinatha Aiyar v. Vaithinatha Aiyar : (1931)61MLJ544 , where Cornish, J., took the same view of these provisions of the Insolvency Act. The learned Judge held that the provisions of Section 5 of the Limitation Act could not be applied to the case of a creditor's 'petition' under Section 9 of the Insolvency Act, because such a petition 'is not an a application' within the meaning of Section 78 of the Act of 1920. I respectfully agree.

22. In my view, it is not necessary at present to examine the prior decisions of the several Courts in India on the question whether the time taken in getting copy of decisions passed under the Insolvency Act could be deducted in computing the period prescribed for an appeal under that Act. Section 78 has made the position clear, in cases arising under the new Act.

23. It could not be said that there are no 'applications' mentioned in the Provincial Insolvency Act in respect of which periods of limitation have been fixed by the Act. It is enough to refer, for example, to Section 68 of the Act which prescribes a period of 21 days in respect of 'applications' mentioned therein.

24. Having regard to the various provisions of the Provincial Insolvency Act, 1920, I think that it is a legitimate inference to draw that the Legislature has, in that Act, used the expressions 'petitions' and 'applications' for different purposes and with different legal significations, and that power to excuse delay in respect of 'applications' given under Section 78 of the Act, by reference to Section 5 of the Limitation Act, is not applicable to excuse delay in filing a creditor's 'petition' under Section 9 of the Insolvency Act.

25. The remarks of Lord Halsbury in Commissioners for Special Purposes of Income-tax v. Pemsel (1891) A.C. 531 came to my mind, where the following passages occur:

That, in fact, the language of an Act of Parliament may be founded on some mistake, and that words may be clumsily used, I do not deny. But I do not think it is competent to any Court to proceed upon the assumption that the Legislature has made a mistake. Whatever the real fact may be, I think a Court of Law is bound to proceed upon the assumption that the Legislature is an ideal person that does not make mistakes. It must be assumed that it has intended what it has said, and I think any other view of the mode in which one must approach the interpretation of a statute, would give authority for an interpretation of the language of an Act of Parliament, which would be attended with the most serious consequences.

26. I find that in Upendranath Galowa v. Hemchandra Koley I.L.R. (1931) C. 1359 Suhrawardy and Graham, JJ., observed at page 1390 as follows, and that in construing a fiscal enactment-

Under Chapter XII, Rule 3, Appellate Side Rules, a Court-fee of Rs. 2 is prescribed for 'swearing, affirming every affidavit,' thus indicating that there is some difference between 'swearing' and 'affirming'. It may be that solemn affirmation takes the form of an affidavit.

27. However much I may feel that the difference practically between a 'petition' and an 'application' is rather too fine, I feel driven to the conclusion I have arrived at, by the use of these two expressions, in various sections of the Act in question.

28. I may observe in passing that, so far as our attention was drawn, no such provision exists in the English Bankruptcy Act or in the Presidency Towns Insolvency Act. I may refer to Maxwell on Interpretation of Statutes, Chapter XII, Section 3, pages 516 to 522, regarding the inference to be drawn when there is a change of language in a statute.

29. In this view, it is not necessary to consider the second question raised by the learned advocate for the petitioner before us, viz., that the period of three months mentioned in Section 9 is not 'a period of limitation' at all, but is only one of the factors which along with other factors mentioned in the section created a right in the creditor which he could enforce under the Act; that while limitation bar applies only to the rights that exist, Section 9 creates no right in the creditor unless the transaction relied on as constituting an act of insolvency took place within the period mentioned in that section, and as he contends, there being no right, no question of limitation arises. I do not propose to go into this question at present. In Aiyapparaju v. Venkatakrishnayya (1922) 44 M.L.J. 303 though Spencer, J., was inclined to adopt that view, Justice Venkatasubba Rao preferred not to express any opinion on that point, as that learned Judge pointed out on the ground that 'the question is a difficult one', and having regard to my opinion on the first of the two points mentioned above, it is not necessary for the disposal of the present Revision Petition to decide the second point.

30. For the above reasons, I agree with my learned brother that the Revision Petition should be allowed with costs in the High Court only, and the Subordinate Judge's order restored. The order as to costs passed by the Lower Courts, namely, that each party is to bear his own costs in each of those Courts, will stand.


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