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L.V. Narasimha Sastri Vs. Official Assignee - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in129Ind.Cas.650
AppellantL.V. Narasimha Sastri
RespondentOfficial Assignee
Excerpt:
presidency towns insolvency act (iii of 1909), section 85 - proof of debts--official assignee's power to enquire into validity of decree debts--power of court to prevent abuse by debtor of official assignee's jurisdiction--evidence act (i of 1872), section 11--judgment not inter partes, relevancy of. - - subba rao was the original payee who was said to have endorsed the note to the appellant. 'the rule is clearly stated by james, l. there was obviously strong reason for this, because the object of the bankruptcy laws is to produce the distribution of a debtor's goods amongst his just creditors. when a person is sui juris a judgment against him is very strong prima facie evidence against him of the existence of a debt; it does not decide that there being a judgment, on the mere..........from the district munsif's court of cocanada. in the schedule to the petition he showed this decree debt as the only debt for which he was liable. he was duly declared insolvent and his properties vested in the official assignee.2. immediately, the appellant sought to prove his debt by producing his decree. the official assignee held that the debt was not proved. there was an appeal by way of notice of motion seeking to set aside the order of the official assignee. this was on 28th april, 1925. this petition was adjourned and on 19th august, 1925, an order was issued for a commission to examine witnesses. on 4th september two witnesses were examined on commission: (1) mr. y. kameshwara rao, a first grade pleader of 28 years' standing of cocanada; and (2) p. bhimalingamurthy, a.....
Judgment:

Vepa Ramesam, J.

1. This is an appeal against the order of our brother Kumara Swami Sastri, J., in the course of insolvency proceedings relating to the insolvency of P. Kumaraswami Rao in I.P. No. 263 of 1923. The facts out of which this appeal arises may be stated. The appellant before us, L.V. Narasimha Sastri, got a decree against the insolvent in O.S. No 282 of 1922 on the file of the District Munsif's Court of Cocanada on a, promissory note said to have been dated 28th January, 1921, and said to have been lost. This decree was sought to be executed against the insolvent. It was transferred to Madras and in execution of it the insolvent was sought to be arrested on 20th August, 1923. He at once sought the protection of the Insolvency Court, In that petition he alleged that the promissory note on which this decree was obtained was a fictitious one and that he was also not properly served with summons from the District Munsif's Court of Cocanada. In the schedule to the petition he showed this decree debt as the only debt for which he was liable. He was duly declared insolvent and his properties vested in the Official Assignee.

2. Immediately, the appellant sought to prove his debt by producing his decree. The Official Assignee held that the debt was not proved. There was an appeal by way of notice of motion seeking to set aside the order of the Official Assignee. This was on 28th April, 1925. This petition was adjourned and on 19th August, 1925, an order was issued for a commission to examine witnesses. On 4th September two witnesses were examined on commission: (1) Mr. Y. Kameshwara Rao, a first grade Pleader of 28 years' standing of Cocanada; and (2) P. Bhimalingamurthy, a Municipal Councillor of Cocanada but these were not cross-examined on that occasion. So a further commission was ordered to issue for the cross-examination of these witnesses and on 24th October, 1925, the two witnesses were cross-examined. Afterwards two other witnesses P. Subba Rao and the appellant himself were n examined before the Official Assignee. P. Subba Rao was the original payee who was said to have endorsed the note to the appellant. The second witness Bimalingamurthy was an attestor and the first witness, the Vakil, says that the note was shown to him, that he issued the registered notice to the insolvent, that afterwards he filed t the suit and in the interval the suit note, was lost. On 1st February, 1926, the case was sent back to the Official Assignee, On 2nd November, 1928, the petition was a ordered by the Assistant Registrar to be I posted before the Court as nothing was done by the Official Assignee but it was not so posted. There were further adjournments in December 1928 and finally on 11th January, 1929, the Official Assignee sent his report to the Original Side. On 21st January, 1929, the matter came up before our learned brother and he ordered the application of April 1925 to be dismissed. The present appeal is against this order.

3. It appears that the only debt to which this insolvent is liable is this decree-debt. If this decree-debt is a spurious debt and ' is held to be no debt then there is no insolvency. A man cannot be insolvent without any debts to pay. But in the present case because execution was attempted against him by arrest he applied to be declared insolvent and used the insolvency jurisdiction for attacking the nature of the debt and for contending that that was a fictitious debt. There is no doubt about the powers of the Official Assignee to investigate into the debts attempted to be proved before him, whatever their nature may be and whether founded on a contract, loan or a judgment or a decree. In Ex parte Revell, In re Tollemache (1885) 13 Q.B.D. 720 : 34 L.J.Q.B. 89 : 51 L.T. 376 Bagallay, L.J., says: 'The rule is clearly stated by James, L.J., in Ex parte Kibble, thus: 'It is the settled rule of the Court of Bankruptcy on which we have always acted, that the Court of Bankruptcy can enquire into the consideration for a judgment debt. There was obviously strong reason for this, because the object of the Bankruptcy Laws is to produce the distribution of a debtor's goods amongst his just creditors. If a judgment were conclusive, a man might allow any number of judgments to be obtained by default against him by his friends or relatives without any debt being due on them at all; it is, therefore, necessary that the consideration of the judgment should be liable to investigation.''

4. Then he proceeds: 'I do not wish to lay it down as a rule that the Court should enquire into the consideration for a judgment debt when nothing is shown to justify the enquiry. I am disposed to think that prima facie a judgment ought to be considered as binding. But if a proper case is made, I think, the Court ought to direct an inquiry into the consideration for a judgment debt.' At page 725 Page of (1885) 13 Q.B.D.--[Ed.], Cotton, L.J., says: 'In bankruptcy a judgment certainly stands in a different position from that in which it previously stood as against the debtor himself, because the rights of the other creditors of the bankrupt have supervened. When a person is sui juris a judgment against him is very strong prima facie evidence against him of the existence of a debt; if he disputes it he must satisfy the Court that there is some reason which, requires that the judgment should be set aside.'

5. In In re Flatau, Ex parte Scottish Whisky Distillers (1889) 22 Q.B.D. 83 : 37 W.R. 42, Lord E9her, M.R., says: 'When an issue has been determined in any other Court, if evidence is brought before the Court of Bankruptcy of circumstances tending to show that there has been fraud or collusion, or miscarriage of justice, the Court of Bankruptcy has power to go behind the judgment and to inquire into the validity of the debt. But that the Court of Bankruptcy is bound in every case as a matter of course to go behind a judgment is a preposterous proposition.'

6. In In re Saville, Ex parte Saville (1887) 4 Morrell 277 : 35 W.R. 791, the same learned Judge observes:

It does not decide that there being a judgment, on the mere suggestion of the debtor that the judgment debt is bad, the Court of Bankruptcy is bound to go behind the judgment and inquire into the validity of the debt. There is a judgment debt. That is a sufficient debt on which to found a bankruptcy. It is true that if suggestions are made and some plausible evidence given that the judgment debt does not really exist, the Court may well examine into it. * * * * Nothing was offered against the circumstances except the statement if the debtor, which he had ample opportunity and which it was to his interest, to bring forward before.

7. In the present case there seems to be some ground for suggesting that the insolvent was not properly served with summons in the District Munsif's Court of Cocanada. At any rate it appears that he was not personally served though the service may be declared sufficient in law. When he was arrested in August 1923 he had an opportunity to contest before the District Munsif's Court to set aside the ex parte decree. Under Article 164, Limitation Act, he has 30 days to get that decree set aside, but not having done so the decree has now become incapable of being set aside. The debtor himself, therefore, cannot get rid of that decree assuming it is a wrong or an unjust decree. This, of course, does not prevent the Official Assignee in insolvency from investigating into the nature of the debt if there are grounds for doing so. The cases I have cited show that the basis of his jurisdiction and the reason for his investigating into the judgment claims is the necessity of protecting other creditors. Where there are no other creditors the reason for examining into this judgment debt especially when the debtor himself allowed the opportunity he had to pass by becomes much less.

8. In In re Van-Laun, Ex parte Chatterton (1907) 2 K.B. 23 : 76 L.J.K.B. 644 : 23 T.L.R. 384 : 51 S.J. 344 : 14 Man 91 : 97 L.T. 69, Cozens Hardy, M.R., says: 'The trustee in bankruptcy can say: You are a person who comes in to prove a debt. It is my duty to see that this bankrupt's assets are distributed amongst those who are justly, legally and properly creditors of the estate. In order to enable me to do my duty, I ask you to furnish me with such information as will enable me to do that which I am told to do by Rule 22, Schedule II, to the Act, to examine every proof and the grounds of the debt.'

9. Buckley, L.J., says: 'The trustee is entitled to say: 'It is my business to see that those who seek to rank against this estate are persons who are really creditors of that estate.'

10. In In re Vambell, Ex parte Seal (1811) 2 K.B. 992 : 81 L.J.K.B. 154 : 19 Man 1 : 105 L.T. 529 a judgment was obtained which was opposed to the terms of the Money Lenders Act. There was afterwards a further agreement with reference to that judgment. It was held that it is open to the Court to find that the judgment and further arrangements are both illegal and as they are opposed to the Money Lenders Act, are unlawful and void and constitute a criminal offence. That case, therefore, does not help the respondent. In the present case, as already stated the only purpose for which the judgment is being attacked is to say that the decree debt was wrongly passed. If the contention of the Official Assignee is upheld then there is no reason for declaring the insolvent an insolvent and if the insolvency is annulled his protection is lost and the decree can be executed against the insolvent by attachment and arrest. In the latter case he will resort to insolvency again. Thus we get into a vicious circle. I do not think this jurisdiction of the Official Assignee to enquire into debts should be used as a device to escape the execution of a decree where the only debt of the insolvent is the decree and there are no other debts.

11. It seems to me that the insolvency jurisdiction should not be used as a device to evade execution of a decree which has become final and unimpeachable as in the present case: he wever, evidence has been adduced by the appellant. His Vakil, E.W. No. 1, says that he saw the promissory note. It is true that such evidence cannot prove the genuineness of the note. It only shows that the alleged note was shown to the Vakil for the purpose of issuing a notice, but that takes the appellant's case to a certain stage. Then we have got the evidence of R.W. No. 2. He was the attestor. He was a Municipal Councillor of Cocanada. Though it does not appear that he is a man of very affluent circumstances nothing is elicited against him as to why he should join in a conspiracy to support the alleged note or why he should depose against the insolvent.

12. Then there is the evidence of the appellant, which, of course, is somewhat interested, but it must be remembered after all that he is only the endorsee of the note and not the original lender, the original lender being R.W. No. 3, P. Subba Rao. The Official Assignee in his report relies on two circumstances: (1) that the summons was not properly served and, therefore, the insolvent is not bound by the decree. In the first place it is for the Court which passed the decree to inquire into the question whether the summons was properly served; (2) he relies upon a judgment in Madras Small Cause Court Suit No. 9738, a suit instituted by the insolvent against an Advocate of this High Court, Mr. P.C. Venkataramanayya Pantulu, for a sum of Rs. 600 and odd. In that suit it wag the case of the insolvent that the Rs. 1,200 admittedly sent by Subba Rao according to both the parties was sent not as a loan but as payment on behalf of Mr. P.C. Venkataramaaayya who owed Rs. 2,500 to the insolvent, and the suit was for Rs. 600 settled by mediators as the sum still due in respect of the balance of Rs. 1,200. The subject-matter of this suit is not this Rs. 1,300 but the remaining Rs. 1200. The appellant before us was not a party to that suit. The Small Cause Judge decreed the suit for Rs. 600 odd Incidentally he made remarks about the nature of the payment of Rs. 1,300. Surely. observations in a judgment relating to a different matter though connected cannot bind a third party and the judgment itself cannot be evidence against him. The appellant was not a party to that suit and he had no opportunity 10 cross-examine the witnesses there. The Official Assignee beyond referring to the judgment of the Small Cause Court and the fact that the summons was not properly served did not go into the matter to examine evidence. The evidence for the appellant was not contradicted by either evidence on behalf of the insolvent or the Official Assignee. The respondent now asks for a further opportunity of adducing further evidence. We do not think there is a case made out for further evidence. The Official Assignee was content to report before the learned Judge on the materials available then. We do not think this is a case in which the suspicions that have been suggested against the appellant's case ought to be allowed to practically vacate the decree of the District Munsif's Court of Cocanada, especially when it is the only debt subsisting against the insolvent. We think the debt must be regarded as proved and we allow the appeal. The Official Assignee will pay the appellant's and his own costs out of fees of his office charges fund. No costs in the lower Court for both sides.

Cornish, J.

13. I am of the same opinion. Although the debtor was probably ignorant of the suit filed by the creditor in the Cocanada Court he certainly became aware that an ex parte decree had been passed against him when he was arrested in execution of the decree. Instead of taking steps to have the decree set aside and Ms omission is the more remarkable because in a subsequent affidavit he described the decree as a fraudulent decree, the debtor apparently preferred to take refuge in the Insolvency Act and to get himself adjudicated an insolvent. Order IX, Rule 13, Schedule I, Civil Procedure Code, provides a simple procedure for getting an ex parte decree set aside, and Article 164, Limitation Act, prescribes the time within which steps must be taken. By allowing this decree to stand, therefore, the debtor permitted strong prima facie evidence of the validity of the debt to remain. No doubt, the Official Assignee acted within his rights in investigating the circumstances in which this decree was passed. As observed in In re Ven Laun, Ex parte Chatterton (1907) 2 K.B. 23 : 76 L.J.K.B. 644 : 23 T.L.R. 384 : 51 S.J. 344 : 14 Man 91 : 97 L.T. 69.--[Ed]: 'The trustee's right and duty when examining a proof for the purpose of admitting or rejecting it is to require some satisfactory evidence that the debt on which the proof is founded is a real debt. No judgment recovered against the bankrupt, no covenant given by or account stated with him, can deprive the trustee of this right.'

14. It was open to the Official Assignee, therefore, to satisfy by evidence the Insolvency Court that, either on account of fraud or collusion or miscarriage of justice, the Court should go behind the decree and invalidate decree debt. But the only evidence and I am assuming that it is evidence by reason of Rule 117, Insolvency Rules before the Insolvency Court was the report of the Official Assignee and the only ground given in the report for treating the decree as not binding on the debtor is the Official Assignee's finding that the summons in the suit was not properly served on the debtor. The only reason given in the report for discrediting the evidence of the creditor and his witnesses in support of his claim is a bare reference to a quite relevant finding, that is to say, irrelevant to this enquiry by the Judge of the Small Cause Court in a suit between the debtor and some other person, to which the creditor was not a party and in which he did not give evidence. In my opinion these materials are not sufficient evidence either of collusion or of fraud or of miscarriage of justice as would justify the Insolvency Court in invalidating the decree and he lding that the debt is not binding upon or proved against the debtor.


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