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P.L.P.L. Palaniappa Chetty Vs. V.S.S.P. Subramanian Chetty and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in54Ind.Cas.740
AppellantP.L.P.L. Palaniappa Chetty
RespondentV.S.S.P. Subramanian Chetty and ors.
Cases ReferredLadu Ram v. Mahabir Prasad
Excerpt:
provincial insolvency act (iii of 1907), sections 43, 46, 93 - inventory, failure to file--creditor who sets court in motion, whether 'person aggrieved'--right of creditor to ask for commitment. - - by the failure of the insolvent to produce his books, etc......act.2. a preliminary objection was taken by mr. krishnaswami aiyar that the appellant is not a person aggrieved' within the meaning of section 46 of the provincial insolvency act, and, therefore, that this appeal does not lie. he cited lyappa nainar v. manica asari 27 ind. cas. 241 : 40 m.p 630 which is a decision directly in point. some of the reasons given by the learned judges in tint case do not commend themselves to us, but we think that the conclusion of the learned judges is right. section 43 of the provincial insolvency act, which enables the court to call upon the insolvent to produce his books and to give inventories of his properties, etc., was intended to facilitate the work of the court in finally adjudicating on the extent of the properties which are to be distributed.....
Judgment:

1. This is an appeal against the order of the District Judge of Ramnad dismissing an application presented by the appellant before us under Section 93 of the Provincial Insolvency Act.

2. A preliminary objection was taken by Mr. Krishnaswami Aiyar that the appellant is not a person aggrieved' within the meaning of Section 46 of the Provincial Insolvency Act, and, therefore, that this appeal does not lie. He cited lyappa Nainar v. Manica Asari 27 Ind. Cas. 241 : 40 M.P 630 which is a decision directly in point. Some of the reasons given by the learned Judges in tint case do not commend themselves to us, but we think that the conclusion of the learned Judges is right. Section 43 of the Provincial Insolvency Act, which enables the Court to call upon the insolvent to produce his books and to give inventories of his properties, etc., was intended to facilitate the work of the Court in finally adjudicating on the extent of the properties which are to be distributed among the various creditors. By the failure of the insolvent to produce his books, etc., it is the Court that is aggrieved. It is true, as was contended by Mr. Patanjali Sastri, that the creditor is undoubtedly interested in seeing that the books are produced and that the proper inventory is taken. That is the reason why he is given the privilege of setting the Court in motion. If the language of Section 13 is compared with that of Section 43 to which Mr. Krishnaswami Aiyar drew our attention, the position is fairly clear. The language in Section 13 is 'the Court may, either of its own motion or on the application of any creditor, make one or more of the following orders,' etc., there is no corresponding provision in Section 43 which entitles the creditor to set the Court in motion. No doubt, ordinarily the Court which has other duties to per. form should not be expected to suo motu make enquiries of the kind mentioned in Section 43. On that account, the Court would avail itself of any assistance that may be given to it by the creditor who brings to its notice the delinquencies of the debtor, but that would not give a right to the creditor to say that the debtor must be committed to jail, and that by not sending him to jail he is in any way aggrieved. We. think that, as was pointed out in Thiruvenkata Chariar v. Thangayi Ammal 29 Ind. Cas. 294 : 39 M.P 479 : 17 M.L.T. 432 : 29 M.L.J. 755 and in Alagappa Chettiar v. Nagaratna Mudaliar 42 Ind. Cas. 789 : 33 M.L.J. 612 : 6 L.W. 445 : (1917) M.W.N. 677 : 22 M.L.T. 371 the correct definition of the expression person aggrieved' is that given in Sidebotham, Ex parte; Sidebotham, In re (1880) 14 Ch. D. 458 : 49 L.J. Bk. 41 : 42 L.T. 783 : 28 W.R. 715. Mr. Patanjali Sastri contended that in the present case the creditor whose application was refused would come within the definition as given by Lord Justice James. He particularly drew our attention to this language in that definition, namely, 'a person who has suffered a legal grievance or who has been wrongfully refused something.' The word 'wrongfully' indicates that there is a right which has been violated and as we pointed out at the outset, a creditor has no right to set the Court in motion although the Court may avail itself of the assistance which he may render. We are in agreement with the statement of the law as laid down in Ladu Ram v. Mahabir Prasad 37 Ind. Cas. 996 : 39 A.P 171 : 15 A.L.J. 31 wherein it is pointed out that the duties imposed by the provisions contained in Section 43 are of a disciplinary character and that the person, if any, who is really aggrieved is the Court to whom proper assistance has not been rendered by the debtor and not any person who sets the Court in motion. We express no opinion on the merits of this case as the matter has not been argued before us.

3. The preliminary objection that there is no appeal to this Court must be upheld and the appeal is rejected with costs.


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