Skip to content


S. Raja Chetty Vs. Khiaram Kushiram and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberO.S. Appeal No. 154 of 1952
Judge
Reported inAIR1954Mad272; (1953)2MLJ523
ActsPresidency Towns Insolvency Act, 1909 - Sections 9 and 13
AppellantS. Raja Chetty
RespondentKhiaram Kushiram and anr.
Appellant AdvocateT. Ramaprasada Rao, ;I.K. Rajagopalan and ;S.S. Rajagopalan, Advs.
Respondent AdvocateP.V. Subramaniam, Adv.
DispositionAppeal dismissed
Excerpt:
- - but the learned judge was not satisfied that the request was bona fide or reasonable one. admittedly in this case notice has been issuedbefore adjudication and, therefore, the provisionactually applicable is section 13(5), which is to theeffect that the court may make an order ofadjudication if it is satisfied with the proofabove referred to or if on hearing the petitionis posted to some other day and the debtor doesnot appear and service of the petition is provedunless in the opinion of the court, the petitionought to have been presented before some othercourt having insolvency jurisdiction......pay the debt due to the petitioning creditor states as follows: 'this is a petition to adjudge the debtor insolvent on the ground that he allowed the attachment in execution of a decree obtained against him by the petitioning creditor to continue in respect of a sum of rs. 27. the fact is not disputed.' the learned judge eventually granted time to the insolvent and when the matter came up afresh before him on 3-11-1952. it was found that the debtor alone appeared and was not represented by counsel. the debtor requested for further time praying that he wanted to sell some properties and find some money. but the learned judge was not satisfied that the request was bona fide or reasonable one. therefore the petitioner was adjudged insolvent.2. mr. rajagopalan contends that section 13(2),.....
Judgment:

Govinda Menon, J.

1. The only question which has been argued by Mr. Rajagopalan, for the appellant is that thereis no proof in the case that an act of insolvency has been committed by the petitioner and, there fore, the adjudication ought not to have been, made. On 4-8-1952 the learned Insolvency Judge in an order granting time to the appellant to pay the debt due to the petitioning creditor states as follows: 'This is a petition to adjudge the debtor insolvent on the ground that he allowed the attachment in execution of a decree obtained against him by the petitioning creditor to continue in respect of a sum of Rs. 27. The fact is not disputed.' The learned Judge eventually granted time to the insolvent and when the matter came up afresh before him on 3-11-1952. it was found that the debtor alone appeared and was not represented by counsel. The debtor requested for further time praying that he wanted to sell some properties and find some money. But the learned Judge was not satisfied that the request was bona fide or reasonable one. Therefore the petitioner was adjudged insolvent.

2. Mr. Rajagopalan contends that Section 13(2), Presidency Towns Insolvency Act, should be invokedwith the result that in this case in the absenceof any proof regarding the act of insolvency, theorder of the learned Judge cannot be maintained. What is contended is that the petitioningcreditor should have got into the 'witness box'and adduced prima facie evidence of the act ofinsolvency. Sub-section 2(b) is to the effect thatat the hearing the court should require proofof the act of insolvency. This contemplates astage before notice is issued to the insolvent.Admittedly in this case notice has been issuedbefore adjudication and, therefore, the provisionactually applicable is Section 13(5), which is to theeffect that the court may make an order ofadjudication if it is satisfied with the proofabove referred to or if on hearing the petitionis posted to some other day and the debtor doesnot appear and service of the petition is provedunless in the opinion of the court, the petitionought to have been presented before some othercourt having insolvency jurisdiction. The purportof this sub-section is that after notice has beenissued and at the hearing date, if the court issatisfied on prima facie evidence adduced, thatan act of insolvency has been committed, or ifthe insolvent does not appear, in either of thosecases, the court is entitled to adjudge him an insolvent.

3. As we have stated already, there is no oral evidence regarding the act of insolvency. But the insolvent himself admitted that his properties have been attached for a sum of Rs. 27 and such an attachment has been in existence for more than 21 days. These facts would be sufficient to bring the case within Section 9(e), which is to the effect that an act of insolvency has been committed by the debtor, if any of his properties have been attached for a period not less than 21 days in execution of a decree of any court for payment of money. Here is a case where on the admission of the insolvent himself, an act of insolvency has been committed. In such circumstances, we do not think that there is any necessity for any formal proof of the act of insolvency by anybody on behalf of the petitioning creditor, getting into the witness-box and proving the fact. This being the only point which has been argued before us and in our opinion the point not being substantial, the appeal is dismissed. No order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //