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Aiyaparaju Alias Ayyappa Vs. Veeva Venkatakrishnayya and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtChennai
Decided On
Reported in(1923)44MLJ303
AppellantAiyaparaju Alias Ayyappa
RespondentVeeva Venkatakrishnayya and ors.
Cases ReferredKhunni Lal v. Gobind Krishna Narain I.L.R.
Excerpt:
.....legal presentation under the act in force at the time when it was presented. 12. the difficulty caused by the last date for the presentation of the creditor's application to the district court having fallen on a date when that court was closed for the vacation could have been overcome by the application of section 10 of the general clauses act, if the district judge had not been of opinion that a question of limitation was involved. section 6 of the general clauses act, act x of 1897, clearly provides that when any act of the governor general in council repeals any enactment, the repeal shall not revive anything not in force or existing at the time at which the repeal takes effect or affect any right or privilege acquired under any enactment so repealed......shown for not making the application within the period allowed by the law.22. was the district judge right in acting under section 78 of the new act? the application to excuse delay was filed on the 21st february 1921, and it was suggested that a fresh insolvency petition should be deemed to have been filed on that date, that is, after the new act had come into force. whether the district judge purported to make an order excusing the delay in the course of an insolvency petition presented under the old act or on a petition presented under the new act, the action of the district judge seems to be equally unjustifiable. section 6 of the general clauses act, act x of 1897, clearly provides that when any act of the governor general in council repeals any enactment, the repeal shall not.....
Judgment:

Spencer, J.

1. This is an appeal against an order of adjudication under the Provincial Insolvency Act. The insolvency petition, from which originated the District Judge's proceedings, was one presented by a creditor under Section 6(4) of Act III of 1907.

2. It was first presented on June 28th, 1919 to the District Munsif of Razole who had no jurisdiction to entertain it. Having been returned by that Court on September 22nd, 1919 it was represented to the District Court on October 1st, 1919 which had jurisdiction under Section 3. One of the pre-requisites for the valid presentation of a creditor's petition is that contained in sub clause (c) to Clause 4 of Section 6, namely that the act of insolvency which forms the ground of the application should have occurred within 3 months of the date of presentation of the petition. The act of of insolvency put forward in this case as the basis of the petition was a transaction of sale, of the debtor's property on March 31st, 1919 alleged to have been made with the intent of defeating his creditors. The Razole District Munsif had been invested under Section 3 of the Act with jurisdiction only over debtors' insolvency petitions. When this creditor's petition was presented to a Court having jurisdiction, more than 3 months had elapsed since the commission of the act of insolvency upon which the petition was grounded. Thus the petition was liable to be rejected as out of order. But the District Judge, on a petition to excuse delay being presented on February 21st, 1921, acted under Section 5 of the Limitation Act, and holding that there was 'sufficient cause'for the petition not being presented earlier, excused the delay and proceeded to enquire into the merits of the case. In Lingayya v. Chinna Narayana 33 M.I.J. 566 (FB) a Full Bench of this Court laid down that the general provisions of the Indian Limitation Act, which include Section 5, were not applicable to petitions under the Provincial Insolvency Act (III of 1907).

3. After the pronouncement however, a new Provincial Insolvency Act' (V of 1920) was passed and came into force on February 25th, 1920, the old Act being simultaneously repealed.

4. The new Act contained a new provision (Section 78) which runs thus:

5. 'The provisions of Sections 5 and 12 of the Indian Limitation Act, 1908 shall apply to appeals and applications under this Act, and for the purpose of the said Section 12, a decision under Section 4 shall be deemed to be a decree.'

6. The question of law to be decided now is whether the District Judge acted legally in excusing the delay upon sufficient cause being shown and admitting a petition which at the date of its presentation failed to comply with one of the conditions of a legal presentation under the Act in force at the time when it was presented.

7. I hold for two reasons that he had no power to excuse the delay.

8. In the first place Section 6 of Clause 4 of Act III of 1907, which was applicable on the date (Ist October, 1919) when the Insolvency petition was presented, makes the occurrence of an act of insolvency within three months of the date of presentation one of three conditions precedent to a lawful presentation.

9. If any of these conditions are unfulfilled the petition is an incompetent one.

10. The English Bankruptcy Act of 1914 contains a similar provision in Section 4 reproduced from the Bankruptcy Acts of 1883 and 1890.

11. 'A creditor shall not be entitled to present a bankruptcy petition against a debtor unless,

(a)...

(b)...

(c) The act of bankruptcy on which the petition is grounded has occurred within three months before the pre sentation of the petition.' This provision appears to be quite independent of the Statute of limitations in both countries and to be absolute. This view can be held consistently with what was said in Lin-gayya v. Chinna Narayana 33 M. I. J. 566 (FB). I was one of the referring Judges in that case, and the first thing we had to decide was whether the appeal to the High Court was in time. This depended on the questions (1) whether the time occupied in obtaining a copy of the District Judge's order could be excluded under Section 12 of the Limitation Act, and (2) if not, whether we had power under Section 5 to excuse the delay.

12. The difficulty caused by the last date for the presentation of the creditor's application to the District Court having fallen on a date when that Court was closed for the vacation could have been overcome by the application of Section 10 of the General Clauses Act, if the District Judge had not been of opinion that a question of limitation was involved.

13. Whether the District Judge's opinion was right or wrong did not require consideration till it was decided whether the appeal was in time.

14. When the amendment of the Provincial Insolvency Act was under the consideration of the Legislative Council, this High Court drew the attention of Government to the Full Bench decision in Lingayya v. Chinna Narayana 33 M.I.J. 566 (FB) , and I feel no doubt that it was in order to meet the doubts and difficulties that had been experienced in admitting appeals against the orders of Insolvency Courts that the Legislature in passing the new Insolvency Act of 1920 introduced Section 78 which made Sections 5 and 12 of the Limitation Act applicable to appeals and applications while omitting other general provisions of the Limitation Act such' as Sections 4 and 14.

15. Secondly, assuming for the purpose of argument that Section 6 purports to provide a period of limitation for the presentation of insolvency petitions, and that the sections in the body of the Limitation Act which deal with the computation of periods of limitation can be invoked lor, extending a period of this kind, under the law prevailing when this petition was presented the District Judge had no power to apply Section 5, as the Full Bench had declared it to be inapplicable to petitions and appeals under the Provincial Insolvency Act. The introduction of Act V of 1920 with its new Section 78 did not alter the law prevailing at the date of the presentation of the petition which alone governed the question of its admissibility. The law in force when the District Judge passed his order has no bearing on this question, for Section 6 of the General Clauses Act prevents the repeal of the previous Act having the effect of reviving a petition that had become barred before the later Act came into force, or affecting the rights and liabilities of creditors and debtors under the earlier Act. Section 14 of the Indian Limitation Act, which is the appropriate section for excluding time spent in prosecuting another proceeding in a Court which has no jurisdiction to entertain has not been made applicable to insolvency petitions either by the Act of 1920, or previously. Consequently the act of presenting a petition by a creditor to a District Munsif's Court which had no jurisdiction was a nullity and had no effect on the subsequent proceedings in a competent Court.

16. The proviso in Clause 2 of Section 6 of the Provincial Insolvency Act of 1907, even if read with Section 21 of the Code of Civil Procedure, cannot be of any avail to the petitioner, as the jurisdiction there referred to is local jurisdiction, not inherent jurisdiction.

17. The appeal must therefore be allowed with costs in this Court and the Court below to be paid to appellant by 1st respondent, and the adjudication is annulled, and the petition dismissed.

Venkatasubba Rao J.

18. I am also of the opinion that the order of the District Judge adudicating the 1st respondent an insolvent must be set aside.

19. The act of insolvency relied on occurred on the 31st March 1919, and the insolvency petition was presented on the 1st October 1919; that is, after the lapse of three months from the occurrence of the act of insolvency on which the petition was grounded. The Provincial Insolvency Act in force on the'date of the presentation of the petition was Act III of 1907. It is not disputed that under that Act the creditor had no right to present the petition. It was held by a Full Bench of this Court in l.ingayya v. Chinna Narayana 33 M.I.J. 566 (FB), that, in dealing'with the admission of petitions and appeals presented after the time prescribed under the provisions of the Provincial Insolvency Act III of 1907, recourse should not be had to the general provisions of the Limitation Act, IX of 1908.

20. The District Judge however purported to act under Section 78 of the Provincial Insolvency Act V of 1920 which repealed the previous Insolvency Act excusing the delay in the presentation of the petition held that the creditor's right subsisted and passed an order of adjudication. The District Judge made the order on the. 26th April, 1921, that is, on a date subsequent to the coming into force of Act V of 1920.

21. Section 78 referred to enacts inter alia that the provisions of Section 5 of the Indian Limitation Act 1908 shall apply to appeals and applications under the Act (Act V of 1920). There is no corresponding section in the Repealed Act, and as pointed out above this Court held that the general provisions of the Limitation Act of 1908 were inapplicable to applications and appeals presented under the old Provincial Insolvency Act. Section 5 of the Limitation Act is one of such general provisions. Under Section 5 the Court may extend the period of limitation on sufficient cause being shown for not making the application within the period allowed by the law.

22. Was the District Judge right in acting under Section 78 of the new Act? The application to excuse delay was filed on the 21st February 1921, and it was suggested that a fresh insolvency petition should be deemed to have been filed on that date, that is, after the new Act had come into force. Whether the District Judge purported to make an order excusing the delay in the course of an insolvency petition presented under the old Act or on a petition presented Under the new Act, the action of the District Judge seems to be equally unjustifiable. Section 6 of the General Clauses Act, Act X of 1897, clearly provides that when any Act of the Governor General in Council repeals any enactment, the repeal shall not revive anything not in force or existing at the time at which the repeal takes effect or affect any right or privilege acquired under any enactment so repealed. The right of the creditor became barred under the Act of 1907, and Section 78 of the new Act cannot be invoked for the purpose of reviving a right which had become barred. The right acquired by the debtor to have no insolvency petition against him grounded on the act of insolvency referred to above, cannot be affected by Section 78.

23. In Hurrinath Chatterji v. Mohunl Methoor Mohun Goswami. L. R. 20 I. A. 183 , their Lordships of the Judicial Committee observe at page 192: 'The intention of the law of limitation is, not to give a right where there is not one, but to interpose a bar after a certain period to a suit to enforce an existing right. ' See also Khunni Lal v. Gobind Krishna Narain I.L.R. 33 All, 356 .

24. I am therefore of the opinion that the order of the District Judge adjudicating the Ist respondent an insolvent cannot be supported.

25. In this view, it is unnecessary to decide the other question whether the provision that the presentation of a petition is not valid unless the Act of insolvency has occurred within three months before it, is a rule of limitation or independent of the Statute of Limitations. The question is a difficult one, and I do not propose to express an opinion upon it.

26. In the result I concur in the order proposed by my learned brother.


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