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In Re: Rm.N.V. Viswanathan Chettiar and ors. of Uma and Co. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtChennai
Decided On
Reported inAIR1948Mad496; (1948)1MLJ241
AppellantIn Re: Rm.N.V. Viswanathan Chettiar and ors. of Uma and Co.
Cases ReferredMurugappa Chetty and Company v. The Official Assignee of Madras
Excerpt:
- - 1. i am satisfied that the issue of summonses in these matters is governed by order xvi of the code of civil procedure. in proceedings under this act, the court shall have the like powers and follow the like proce-dure as it has and follows in the exercise of its ordinary original civil jurisdiction; i am satisfied that the matter is concluded by the decision of the bench. it is, of course, well settled law that that jurisdiction extends throughout the province......to examination under section 36, as it has for the exami-nation of witnesses under the code of civil procedure, 1908.3. in original side appeal no. 30 of 1917 judgment delivered in the case of murugappa chetty and company v. the official assignee of madras, o.s.a. no. 30 of 1917 by wallis. c.j. and oldfield, j.--this appeal is from an order of mr. justice coutts-trotter under section 36 of the presidency towns insolvency act ordering the appellants to produce all books of account, papers and statements relating to the settlement of accounts of the firm of a.m. murugappa chetti and company in or about may 1915, and in particular the settlement of accounts, statement showing all debts due to the firm and all accounts showing monies which have been recovered subsequent to such.....
Judgment:
ORDER

Clark, J.

1. I am satisfied that the issue of summonses in these matters is governed by Order XVI of the Code of Civil Procedure. Section 36 of the Presidency Towns Insolvency Act empowers the Court to summon before it,

Any person known or suspected to have in his possession any property belonging to the insolvent, or supposed to be indebted to the insolvent or any person whom the Court may deem capable of giving information respecting the insolvent, his dealings or property.

2. Section 37 provides that in such cases the Court,

Shall have the same powers to issue commissions and letters of request for the examination on commission or otherwise of any person liable to examination under Section 36, as it has for the exami-nation of witnesses under the Code of Civil Procedure, 1908.

3. In Original Side Appeal No. 30 of 1917 Judgment delivered in the case of Murugappa Chetty and Company v. The Official Assignee of Madras, O.S.A. No. 30 of 1917 by Wallis. C.J. and Oldfield, J.--This appeal is from an order of Mr. Justice Coutts-Trotter under Section 36 of the Presidency Towns Insolvency Act ordering the appellants to produce all books of account, papers and statements relating to the settlement of accounts of the firm of A.M. Murugappa Chetti and Company in or about May 1915, and in particular the settlement of accounts, statement showing all debts due to the firm and all accounts showing monies which have been recovered subsequent to such settlement. The first objection taken on behalf of the appellants is that Mr. Justice Bakewell as Insolvency Judge having refused a similar application, Mr. Justice Coutts-Trotter had no jurisdiction to pass this order. Under Section 8 of the Insolvency Act, the Insolvency Judge has power to review his order and this is in accordance with the decision in Ex parte May, 12 Q.B. 4.97. It is sufficient to say that in the circumstances of the present case, we are not prepared to interfere with the exercise of the learned Judge's discretion in his decision to entertain the motion.

Then it is objected that the order as to the summonses served on the appellants who are residents of Madura, a place more than 200 miles away from Madras is without jurisdiction. Section 90 of the Insolvency Act provides that:

In proceedings under this Act, the Court shall have the like powers and follow the like proce-dure as it has and follows in the exercise of its ordinary original civil jurisdiction; provided that nothing in this sub-section shall in any way limit the jurisdiction conferred on the Court under this Act. and this must be read with Section 37 which gives the Court the same powers to issue commissions and letters of request for the examination on commission or otherwise of any person liable to examination under Section 36 as it has for the examination of witnesses under the Code of Civil Procedure, 1908. Reading these two sections together and also the Original Side Rules, we think that in respect of orders under Section 36 of the Insolvency Act, the Court is governed by the provisions of Order XVI of the Code of Civil Procedure and by any rules relating to the same matter to be found in the Original Side Rules. Order XVI makes a great distinction between summonses to give evidence and summonses to produce documents because under Rule 6 a person summoned to produce a document shall be deemed to have complied with the order by causing it to be produced instead of attending personally to produce it and Rule 19 provides that no one shall be ordered to attend in person to give evidence unless he resides within the limits specified in the rule. There is no such provision as to a summons merely to produce a document because, no matter how far dis-tant the person summoned has his residence, he can comply by causing the document to be produced and it is not necessary for him to attend in person. It therefore follows that the learned Judge had jurisdiction to order the appellants residing in Madura to produce the documents although Madura is more than 200 miles away.

It is next argued that the order is too wide and the Official Assignee has intimated that he does not oppose the rescinding of the second part of the order at the present time and pending further investigation. We think therefore that the order may be modified by limiting it to the order to pro-duce all books of accounts, papers and statements relating to the settlement of accounts of the firm of A.M. Murugappa Chetti in or about May, 1915, including the day books and ledgers of that year. Otherwise the appeal fails and is dismissed with costs. The C.M.P. is dismissed.

(unreported) Sir John Wallis, C.J. and Oldfield, J., held that these two sections (Sections 36 and 37) read with the Original Side Rules applied Order XVI of the Code of Civil Procedure to orders under Section 36. The learned Master's difficulty arises from a decision made 11 years later by Waller, J., in Abdul Rahim Sahib & Co. : (1928)54MLJ715 . The case decided by Sir John Wallis, C.J. and Oldfield, J., concerned, an application for the issue of summons under Section 36 for the purpose of securing the production of certain books of account, papers and statements. The case disposed of by Waller, J., was one wherein a summons was required to secure the attendance and examination of a person alleged to be a debtor of the insolvent. In the earlier case, after holding that Order XVI of the Code of Civil Procedure applied to such cases, the Bench held that Rule 19 had no application to a case where the summons sought was one for production of documents and that accordingly the two-hundred mile rule would not operate. This decision appears to have been referred to before Waller, J., but he held it to have no application in the case before him which concerned the examination of a person who, vis-a-vis the Official Assignee was in the position of a litigant and not a 'mere witness.' Such a distinction cannot be made in respect of applications which I am now considering which were applications for the examination of persons capable of giving evidence of the insolvent's dealing with his property. I am satisfied that the matter is concluded by the decision of the Bench.

4. The Official Assignee has urged that the correct view is that taken by Greaves, J., in In re Dinaram Somani and Ors., Insolvents 27 C.W.N. 370. He urges that the application of Order XVI, Rule 19, to applications under Section 36 of the Presidency Towns Insolvency Act must necessarily operate to limit the jurisdiction of the Court. It is, of course, well settled law that that jurisdiction extends throughout the province. He contends Section 37 can be regarded only as an enabling section. These arguments do not commend themselves to me but it is unnecessary for me to examine them as I am bound by Bench decision, to which I have already referred.


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