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Thana Velayudha Nadar Vs. V.S. Subramania Pillai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1928Mad609
AppellantThana Velayudha Nadar
RespondentV.S. Subramania Pillai and ors.
Excerpt:
- .....was an abuse of the process of the court and, therefore, the petitioner ought never to have been adjudged insolvent within the meaning of that section. if a debtor satisfies the condition laid down by the act for the presentation of his insolvency petition, it cannot properly be said that he has abused the process of the court and, therefore, ought not to have been adjudged insolvent within the meaning of section 35. and it may be remarked that that section says nothing about abuse of the process of the court. the order of the district judge annulling the petitioner's adjudication is set aside.2. the petitioner also objects to the refusal of his discharge without making the refusal temporary or granting a conditional discharge. it is contended for him that under section 41(2) of the act,.....
Judgment:

Reilly, J.

1. The petitioner who had been adjudged insolvent under the Provincial Insolvency Act, 1920, applied for his discharge within the time fixed. The Subordinate Judge refused to grant the discharge and dismissed the petition. On appeal by the petitioner the District Judge confirmed the Subordinate Judge's order, but went further and annulled the adjudication. The annulment of the adjudication appears to have been made by the District Judge without jurisdiction. He does not mention under what provision he intended to act; but it has been suggested now that he did so under Section 35 of the Act, because the petitioner had contracted debts in transactions on which he embarked without any capital and had no assets, and his presentation of an insolvency petition in such circumstances was an abuse of the process of the Court and, therefore, the petitioner ought never to have been adjudged insolvent within the meaning of that section. If a debtor satisfies the condition laid down by the Act for the presentation of his insolvency petition, it cannot properly be said that he has abused the process of the Court and, therefore, ought not to have been adjudged insolvent within the meaning of Section 35. And it may be remarked that that section says nothing about abuse of the process of the Court. The order of the District Judge annulling the petitioner's adjudication is set aside.

2. The petitioner also objects to the refusal of his discharge without making the refusal temporary or granting a conditional discharge. It is contended for him that under Section 41(2) of the Act, the Court can do only one of three things, viz.: (1), grant an absolute order of discharge; (2) grant a discharge but suspend it for a specified time; and (3), grant a conditional discharge, but cannot merely dismiss the insolvent's application for discharge as has been done in this case. The suggested interpretation gives no effect to the words' or refuse' in clause (a) of the sub-section, which would then be superfluous. The subsection appears to allow the mere dismissal of the application for discharge; but that will not prevent the insolvent from presenting further applications for discharge at any later time. The respondents will pay the petitioners' costs on this petition. In the District; Court each party will pay his own costs.


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