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Chinniya Pillai and anr. Vs. Subbaratnam Pillai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1941Mad22; (1940)2MLJ590
AppellantChinniya Pillai and anr.
RespondentSubbaratnam Pillai
Excerpt:
- - i fail to see how the meaning of the expression 'undischarged insolvent' in the former section can be controlled by anything contained in section 73. it may be that the respondent is disqualified for membership of the panchayat board in question by virtue of the provisions of section 73 and that, in an appropriate proceeding, he may be declared to be so disqualified......as a member of a local board as an 'undischarged insolvent' under section 55(2)(b) of the madras local boards act. the respondent was adjudicated insolvent in 1928 and the adjudication was annulled in 1932 as he did not apply for discharge within the time prescribed. he was elected as a member of the samayapuram-kannanore panchayat board in june, 1938. apparently no objection was raised on the ground of disqualification when he offered himself for election nor was any proceeding instituted to set aside his election after he was elected, but the petitioner who was also a member of the board applied under section 57 on 21st november, 1938, to the district judge, trichinopoly, in which the area of the local board is situated, to determine whether or not the respondent was disqualified.....
Judgment:

Patanjali Sastri, J.

1. The question that falls to be decided in this revision petition is whether a person whose adjudication is annulled under Section 43 of the Provincial Insolvency Act is disqualified for election as a member of a Local Board as an 'undischarged insolvent' under Section 55(2)(b) of the Madras Local Boards Act. The respondent was adjudicated insolvent in 1928 and the adjudication was annulled in 1932 as he did not apply for discharge within the time prescribed. He was elected as a member of the Samayapuram-Kannanore Panchayat Board in June, 1938. Apparently no objection was raised on the ground of disqualification when he offered himself for election nor was any proceeding instituted to set aside his election after he was elected, but the petitioner who was also a member of the Board applied under Section 57 on 21st November, 1938, to the District Judge, Trichinopoly, in which the area of the Local Board is situated, to determine whether or not the respondent was disqualified under Section 55 of the Act. The learned District Judge held that the adjudication of the respondent having been annulled, he could not be said to be an 'undischarged insolvent' and accordingly rejected the application. This civil revision petition is directed against that order.

2. The petitioner's learned Counsel contends that the expression 'undischarged insolvent' should be understood in a literal sense and that once a person was adjudicated insolvent he remained an 'undischarged insolvent' unless he obtained an order of discharge, though the adjudication itself was subsequently annulled. I have no hesitation in rejecting this contention, as its acceptance would lead to the obvious anomaly that a debtor who has obtained his discharge on a partial payment of his debts would be qualified for election to Local Boards, whereas a person whose adjudication has been annulled under Section 35 of the Provincial Insolvency Act either on the ground that he ought not to have been adjudged insolvent or that his debts have been paid in full, would continue to be disqualified for such election as he would be an 'undischarged insolvent' in the sense contended for by the petitioner's counsel. This certainly could not have been the intention of the Legislature in enacting Section 55(2)(b). The petitioner's learned Counsel recognising this, reductio ad absurdem endeavoured to draw a distinction between an annulment of adjudication under Section 35 and an annulment under Section 43 of the Provincial Insolvency Act, on the ground that annulment under the latter provision does not remove the taint of insolvency but only emphasises the debtor's insolvent state, and he placed ^reliance on Section 73 of that Act as recognising the distinction. Apart from this section the bearing of which on the question in dispute I will presently consider, the Act makes no distinction between annulments of adjudication based on one ground or another so far as their legal effect is concerned. There are three sections in the Act which provide for annulment of adjudication, namely, Sections 35, 39 and 43, and Section 37, which indicates what consequences are to follow on such annulment, is made applicable in each case. It seems to me therefore that annulment of adjudication on whatever ground it is based, must be taken to -put an end to the legal character of an insolvent which adjudication under the Act confers upon a debtor. The extinction of such character due to annulment may operate to the advantage or to the prejudice of the person concerned according to the circumstances in which his adjudication is annulled, but it is clear that he can no longer be regarded in the eye of the law as an insolvent. It follows therefore that the respondent in this case cannot be held to be an 'undischarged insolvent'.

3. It remains to consider whether this conclusion is affected. by anything contained in Section 73 of the Provincial Insolvency Act. That section relates to disqualification of insolvent debtors and so far as it is material here, runs thus:

73. (1) Where a debtor is adjudged or read judged insolvent under this Act, he shall, subject to the provisions of this section, be disqualified from-

* * * *(c) being elected or sitting or voting as member of any local authority.

(2) The disqualifications which an insolvent is subject to under this section shall be removed and shall cease if-

(a) the order of adjudication is annulled under Section 35, or

(b) he obtains from the Court an order of discharge, whether absolute or conditional, with a certificate that his insolvency was caused by misfortune without any misconduct on his part.

4. It is clear that under this provision, a person adjudged an insolvent continues to be disqualified for election as member of any local authority notwithstanding the annulment of his adjudication under Section 43 of the Act and in this respect the provision goes beyond Section 55(2)(b) of the Local Boards Act. Petitioner's learned Counsel did not argue before me that Section 73 enacted by the Central Legislature ought to prevail against Section 55 of the Local Boards Act passed by the Provincial Legislature. Such a contention will obviously be of no assistance to the petitioner, as the application in this case was made to the lower Court under the special procedure provided by Section 57 of the Local Boards Act whereby jurisdiction is conferred upon the District Judge to decide questions of disqualification under certain specific provisions only, namely, Sections 54, 55, 56 and 59 of that Act. All that was argued was that the expression 'undischarged insolvent' used in Section 55(2)(b) must be understood in the light of the provisions of Section 73 of the Provincial Insolvency Act so as to avoid a discrepancy between the two provisions. I am unable to see how this can be done consistently with established principles governing construction of statutes. The two provisions, though relating to disqualification for election to Local Boards, so far as it arises out of insolvency, are worded altogether differently and the expression 'undischarged insolvent' does not occur in Section 73. Petitioner's counsel pointed out that the expression 'uncertificated bankrupt' in Section 55(2)(b) of the Local Boards Act must refer to the certificate which is provided for in Section 73(3) of the other Act and argued that the two sections must be read together. I fail to see how the meaning of the expression 'undischarged insolvent' in the former section can be controlled by anything contained in Section 73. It may be that the respondent is disqualified for membership of the Panchayat Board in question by virtue of the provisions of Section 73 and that, in an appropriate proceeding, he may be declared to be so disqualified. But that, in my opinion, cannot affect the question whether the respondent is disqualified under Section 55(2)(b) of the Madras Local Boards Act. The Court below was concerned only with this question in the proceeding out of which this Civil Revision Petition arises, and agreeing with its conclusion I dismiss this petition with costs.


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