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A.T.S. Deivanayagam Pillai Vs. Muthukumarasawmy Pillai - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in14Ind.Cas.560
AppellantA.T.S. Deivanayagam Pillai
RespondentMuthukumarasawmy Pillai
Excerpt:
contract - suit in british india on a ceylon contract--insolvency certificate granted to defendant by ceylon court, effect of--extinguishment of debt--ceylon insolvency ordinance, 1853, sections 126, 130--evidence act (i of 1872), section 38. - .....there is nothing in section 130 to militate against that view.5. the subordinate judge has not considered this ordinance: possibly it was not put before him, but it is sufficient to show that the 2nd defendant has been released from his debt. we ought to observe that it was not suggested that the suit debt is not one of those which would be extinguished by the certificate. we must, in these circumstances, allow the petition and reverse the decree of the subordinate judge so far as it affects the petitioner and dismiss the suit as against him, leaving him to pay his own costs in both courts.
Judgment:

1. It is contended on behalf of the petitioner (2nd defendant), that the debt due under the pro-note had been discharged by virtue of a Certificate (Exhibit I) given to him by the District Judge of Colombo in Insolvency proceedings in Ceylon and that, consequently, this suit on the pro-note is not maintainable as against him. The plaintiff's case, so far as we are now concerned with it, is (1) that the pro-note is the result of dealings between plaintiff and defendants, by which defendants made purchases in Tuticorin from the plaintiff, for use in their trade in Ceylon, and consequently the contract is an Indian contract, and, whatever may be the effect of the Insolvency proceedings in Ceylon, the suit is maintainable in the Indian Courts, and (2) that the effect of the Insolvency Certificate in Ceylon is not to discharge the 2nd defendant from liability for the debt. According to the plaint, the suit is a suit on the pro-note made in Colombo, by defendants residing and trading in Ceylon, and it was not shown that there was a question of performing it in British India. That question does not seem to have been raised, and we must take it, therefore, that the suit is on a Ceylon contract.

2. If then, the Insolvency Certificate, Exhibit I, the Certificate of Conformity as it is called, has the effect of extinguishing the 2nd defendant's debt, the suit as against him would not be maintainable.

3. A portion of the law of Ceylon is discussed by the Subordinate Judge, but evidence of expert witnesses has not been adduced on the subject. We have, however, been referred to the Insolvency Ordinance of 1853, which is in Exhibit I referred to as the authority under which the Certificate is granted, and we are entitled, by Section 38 of the Evidence Act, to decide the question on evidence of this kind.

4. Section 126 of the Ordinance makes it clear that the debts in the Insolvency in which the Certificate is granted, are discharged on the issue of the Certificate, and there is nothing in Section 130 to militate against that view.

5. The Subordinate Judge has not considered this Ordinance: possibly it was not put before him, but it is sufficient to show that the 2nd defendant has been released from his debt. We ought to observe that it was not suggested that the suit debt is not one of those which would be extinguished by the certificate. We must, in these circumstances, allow the petition and reverse the decree of the Subordinate Judge so far as it affects the petitioner and dismiss the suit as against him, leaving him to pay his own costs in both Courts.


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