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V.M. Ahmad Maraikayar Vs. V.N. Thangiah Nadar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1938)1MLJ760
AppellantV.M. Ahmad Maraikayar
RespondentV.N. Thangiah Nadar
Excerpt:
- - 1. both the lower courts have clearly lost sight of section 42(1)(a) of the provincial insolvency act which peremptorily requires the court to refuse an absolute order of discharge: neither the learned subordinate judge nor the learned district judge has expressed himself as satisfied in the manner required by section 42(1)(a). on the contrary, the official receiver reported that there was no evidence whether the deficiency was due to circumstances for which the debtor could not justly be held responsible......value equal to eight annas in the rupeehas arisen from circumstances for which he cannot justly be held responsible.2. in this case it is admitted that the assets did not realise eight annas in the rupee. neither the learned subordinate judge nor the learned district judge has expressed himself as satisfied in the manner required by section 42(1)(a). on the contrary, the official receiver reported that there was no evidence whether the deficiency was due to circumstances for which the debtor could not justly be held responsible. this means simply that the debtor did not discharge the burden laid on him by section 42(1)(a). the learned district judge appears to have fallen into the error of supposing that there was a burden on the creditors, or perhaps on the official receiver to show.....
Judgment:

Burn, J.

1. Both the lower Courts have clearly lost sight of Section 42(1)(a) of the Provincial Insolvency Act which peremptorily requires the Court to refuse an absolute order of discharge:

Unless the insolvent satisfies the court that the fact that the assets are not of a value equal to eight annas in the rupeehas arisen from circumstances for which he cannot justly be held responsible.

2. In this case it is admitted that the assets did not realise eight annas in the rupee. Neither the learned Subordinate Judge nor the learned District Judge has expressed himself as satisfied in the manner required by Section 42(1)(a). On the contrary, the Official Receiver reported that there was no evidence whether the deficiency was due to circumstances for which the debtor could not justly be held responsible. This means simply that the debtor did not discharge the burden laid on him by Section 42(1)(a). The learned District Judge appears to have fallen into the error of supposing that there was a burden on the creditors, or perhaps on the Official Receiver to show that the debtor could justly be held responsible for the deficiency of assets. This is the precise opposite of the correct statement of the law.

3. The order granting an absolute discharge is set aside and the application for discharge must be restored to file and dealt with according to law. The appellant (Petitioner) will be entitled to his costs of this appeal out of the assets if there are any funds in the estate.


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