1. This Letters Patent Appeal has been instituted by the appellant before Venkatadri, J., in Appeal against Order No. 322 of 1961. As the learned Judge himself states, the proceeding involves a question of some interest, whether a particular ground of the insolvency enacted in Section 6, Sub-section (d)(ii) and (iii) of the Provincial Insolvency Act, can be availed of by the sole creditor of the alleged insolvent. For the purpose of this argument which is the single ground involved in the appeal, the following facts will be sufficient.
2. The respondent (creditor) has a decree against the appellant in O.S. No. 153 of 1958, District Munsif's Court, Kallakurichi. The respondent attempted to realise the decree amount by means of four separate execution petitions, but was unsuccessful. According to the respondent, the insolvent (appellant) departed from his dwelling-house and usual place of business, and so secluded himself, that the repeated attempts at executing the decree failed. Thereupon, the respondent filed a petition under Section 9 for adjudication of the appellant as an insolvent, relying on the grounds of Section 6, Sub-sections (i)(ii) and (iii) of the Act.
3. We may take it that, on the facts, the Courts have consistently held that the insolvent (appellant) deliberately went away from his dwelling-house and usual place of business, and secluded himself, with the intention of defeating and delaying this creditor, and preventing an execution of the decree. The only point is whether, because there is only one creditor of the insolvent, the ground is not available, and the creditor is without redress in the matter of obtaining the adjudication of his debtor as insolvent.
4. There would appear to be sufficient authorities in English law and in this country, in support of the broad proposition that the word 'creditors' will include the singular (creditor), and that there is no basic reason in insolvency law why a person should not be declared insolvent on the motion of his sole creditor. The learned Judge (Venkatadri, J.) has cited extracts from the Law and Practice in Bankruptcy by Williams (Seventeenth Edition) page 63 and also from Halsbury's Laws of England (Third Edition, Vol. II, page 290). Admittedly, the leading case on the subject in England is In re, Hecquard L.R. (1889) 24 Q.B.D. 71 at 76 where Lord Lindley, L.J., has observed that,
If the debtor has only one creditor, this is a point to be considered by the Registrar on hearing the petition, but it cannot be laid down as a matter of principle that if there is only one creditor, the Registrar ought to dismiss the petition.
5. The learned Judge has also quoted from Mulla's Law of Insolvency in India (Second Edition at page 157), to show that the law is not different in this country, and that the ground for the principle that even a sole creditor can obtain the adjudication of his debtor as insolvent, is that the Official Assignee or Receiver, following the adjudication, may be able to set aside other transactions of the debtor, and may be able to realise assets which could not be realised without the adjudication. The principle of In re, Hecquard L.R. (1889) 24 Q.B.D. 71 at 76 already cited, has been approbated.
6. But, the argument of learned Counsel for the insolvent does not rest on any wide proposition that, under no conceivable circumstances, could the sole creditor of a person obtain the adjudication of that person in insolvency. On the contrary, learned Counsel relies on certain authorities, for the specific position that where a man attempts to seclude himself from one of his creditors, but, not necessarily from the general body of creditors, that would not be an adequate justification for having him adjudicated as insolvent within the scope of Section 6, Sub-section (d)(ii) and (iii). The main authority for this proposition is the Bench decision of the Rangoon High Court in Maung Nyun Tin v. Saw Eu Hoke A.I.R. 1935 Rang. 281. In this judgment Dunkley, J., does lay down that
Under Section 6(d), Provincial Insolvency Act, it is an essential feature of an act of insolvency that the act should be done with the intent to defeat or delay the creditors generally of the debtor. It is insufficient to allege or to prove that the act was done with intent to defeat or delay any particular creditor.
These observations are relied on by the learned Counsel, for advancing his argument that there could be no valid adjudication in insolvency on the facts of the present case.
7. But, we are clearly of the opinion that this argument is fallacious. When we proceed into the facts of Maung Nyun Tin v. Saw Eu Hoke A.I.R. 1935 Rang. 281, we see that there were several creditors of the parties concerned, and that the attempt was only to defeat or delay the execution of the decree of one particular creditor, who was clearly attempting to run a race ahead of the rest. But, on the facts of the present case, this proposition cannot apply, for, here we have only the sole creditor, who represents in himself the general body of creditors. We think it is obvious that a man may attempt to elude or evade a particular creditor amongst several creditors, for reasons of his own, which may not at all amount to an act of insolvency; for instance that particular creditor may be obnoxious in pursuing methods in realising his debt, even though the debtor has sufficient means to pay off all the creditors. The decision cited has to be clearly distinguished, for in the present case, there is only the sole creditor, and the appellant definitely attempted to evade this creditor who represents the general body of creditors, by departing from his dwelling-house and usual place of business, and by secluding himself.
8. Two other decisions were also referred to, but, they are upon a different aspect altogether of the insolvency law. Ko Po Yin v. Daw Hnin Thet A.I.R. 1934 Rang. 242, is merely authority for the broad proposition, with regard to Section 6(b) of the Provincial Insolvency Act that, where the effect of a transfer would only be to defeat one particular creditor, that is not a ground of insolvency. There must be a transfer made with intent to defeat the creditors as a whole. It is this proposition of law that was affirmed in the other decision, Nivati Bhusan v. Bejoy Chandra , by two learned Judges of the Calcutta High Court. That proposition in Insolvency law need not De disputed or doubted, for the very clear reason that there could be a transfer to one of the creditors themselves, with intent to delay the particular petitioning creditor. That is not a ground for adjudication in insolvency, though, subsequent to the adjudication, that transfer could be set aside at the instance of the Official Assignee, and the assets realised for the benefit of the general body of creditors. Of course, if the transfer could be avoided, as not merely a transfer to a particular creditor, but as a fraudulent preference of that creditor, that in itself would constitute a ground of insolvency under Section 6, Sub-clause (c). The matter has been put in this form in Mulla's Transfer of Property Act, Fifth edition, page 276, under Section 53:
The transfer which defeats or delays creditors is not an instrument which prefers one creditor to another, but an instrument which removes property from the creditors to the benefit of the debtors.
9. Consequently, we are of the view that the decisions cited at the Bar, can all of them be distinguished, with reference to the facts and the situation in insolvency law of the present case. This is a case where the facts abundantly and clearly, establish the ground of adjudication set forth in Section 6, Sub-clauses (d)(i), (ii) and (iii). The fact that the general body of creditors was represented by the sole creditor, is no reason for declining adjudication, for the insolvency law has always recognised that the sole creditor of a debtor could obtain an adjudication in insolvency. The Letters Patent Appeal is dismissed. The costs of the creditor will come from the estate in insolvency.