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K.R.K.K. Krishnappa Chettiar Vs. V.V.R. Kasiviswanathan Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Rev. Petn. No. 1885 of 1962
Judge
Reported inAIR1966Mad331
ActsProvincial Insolvency Act - Sections 10 and 75
AppellantK.R.K.K. Krishnappa Chettiar
RespondentV.V.R. Kasiviswanathan Chettiar and ors.
Cases ReferredChhatrapat Singh Dugar v. Kharag Singh Lachmiram
Excerpt:
- - the debt was found to be a fictitious one and he failed in those proceedings subsequently and pending those proceedings the creditor in respect of that very debt obtained a decree against the petitioner herein and applied for and got his arrested. (2) the courts below have failed to appreciate one aspect of the matter. kharag singh lachmiram, ilr cal 535: air 1916 pc 64 when all the conditions specified under the provincial insolvency act are satisfied, a debtor is entitled to an order of adjudication. at the time of the initiation of the proceeding, the court has only to be satisfied that the essential conditions for adjudication as provided under the act are present......under arrest or imprisonment in execution of the decree of any court for the payment of money. the decree debt in question exceeds rs.. 500 and that apart he was even arrested in execution. the fact that the petitioner is seeking to get round the original dismissal of his application is neither here not there is the face of the mandatory provisions of the act. as pointed out by the privy council in chhatrapat singh dugar v. kharag singh lachmiram, ilr cal 535: air 1916 pc 64 when all the conditions specified under the provincial insolvency act are satisfied, a debtor is entitled to an order of adjudication. the matter does not depend on the discretion of the court, but it is a statutory right of which he cannot be deprived by the court on the ground of abuse of process. there is a stage.....
Judgment:
ORDER

(1) This is a revision under Section 75 of the Provincial Insolvency Act by a debtor whose application to be adjudged as insolvent was dismissed by the learned Subordinate Judge of Sivaganga and was confirmed in appeal by the District Judge, Ramanathapuram at Madurai. Both the courts were of the view that the present proceeding initiated by the debtor was an abuse of process of court. Earlier the debtor had relied upon a particular debt as the basis of his personal indebtedness and initiated I.P. 10 of 1959 seeking adjudication. The debt was found to be a fictitious one and he failed in those proceedings Subsequently and pending those proceedings the creditor in respect of that very debt obtained a decree against the petitioner herein and applied for and got his arrested. It is in those circumstances that the petitioner came up with another application for adjudication.

(2) The courts below have failed to appreciate one aspect of the matter. For adjudicating a debtor an insolvent, the court must see whether there is compliance with the provisions of Section 10 of the Provincial Insolvency Act and whether the debtor has committed an act of insolvency. A debtor commits an act of insolvency. A debtor commits an act of insolvency even if he petitions to be adjudged an insolvent under the provisions of the Act. Under Section 10 his debt must amount to Rs.. 500 or he must be under arrest or imprisonment in execution of the decree of any court for the payment of money. The decree debt in question exceeds Rs.. 500 and that apart he was even arrested in execution. The fact that the petitioner is seeking to get round the original dismissal of his application is neither here not there is the face of the mandatory provisions of the Act. As pointed out by the Privy Council in Chhatrapat Singh Dugar v. Kharag Singh Lachmiram, ILR Cal 535: AIR 1916 PC 64 when all the conditions specified under the Provincial Insolvency Act are satisfied, a debtor is entitled to an order of adjudication. The matter does not depend on the discretion of the court, but it is a statutory right of which he cannot be deprived by the court on the ground of abuse of process. There is a stage at which the court could visit on the petitioner its due consequences of misconduct, that is when the application for discharge comes before the court. At the time of the initiation of the proceeding, the court has only to be satisfied that the essential conditions for adjudication as provided under the Act are present. In this case, the decree debt exceeds Rs.. 500 and the debtor has applied for being adjudicated. That will be sufficient, leave alone the further fact that he had been arrested also in execution of the decree.

(3) In the circumstances, the revision petition has to be allowed. The petitioner is entitled to be adjudicated. The matter will go back to the Subordinate Judge at Sivaganga for further orders on adjudication in the light of the observations made herein. The revision is allowed accordingly. No order as to costs.

(4) Petition allowed.


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