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Ajit Kumar Haldar Vs. Official Receiver and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1944Cal63
AppellantAjit Kumar Haldar
RespondentOfficial Receiver and ors.
Excerpt:
- .....in the order of adjudication, he applied for his discharge on 5th november 1940. the learned district judge, after hear-ing the parties and considering the report of the receiver, refused to make an order of absolute discharge and the order he has made is to the effect that the insolvent will not get his discharge until he has paid eight annas in the rupee. it is against this order that the present appeal has been preferred. dr. basak who appears in support of the appeal has assailed the propriety of this order on a twofold ground. his first contention is that the district judge was wrong in holding that the appellant brought on his insolvency by rash and hazardous speculations and his second argument is that the order made by the district judge is an improper order which is not.....
Judgment:

Mukherjea, J.

1. The appellant before us is one Ajit Kumar Haldar who was adjudged an insolvent on his own application on 9th October 1939. In accordance with the direction contained in the Order of adjudication, he applied for his discharge on 5th November 1940. The learned District Judge, after hear-ing the parties and considering the report of the receiver, refused to make an Order of absolute discharge and the Order he has made is to the effect that the insolvent will not get his discharge until he has paid eight annas in the rupee. It is against this Order that the present appeal has been preferred. Dr. Basak who appears in support of the appeal has assailed the propriety of this Order on a twofold ground. His first contention is that the District Judge was wrong in holding that the appellant brought on his insolvency by rash and hazardous speculations and his second argument is that the Order made by the District Judge is an improper Order which is not contemplated by the provisions of the Provincial Insolvency Act.

2. So far as the first point is concerned, it appears from the evidence that the appellant who is a graduate of the University started the business of purchasing and selling shares sometimes in 1936. It is admitted that his original capital was about Rs. 4000 and with this little money he seemed to have made considerable profits during the year 1936 and the earlier part of 1937. It is said that sometime in April 1937, there was great fluctuation in the share market and he went on incurring continual losses till his liability stood at the staggering figure of Rs. 1,71,000. Dr. Basak tried to show that the loss was due to circumstances over which the insolvent had no control. In the matter of purchasing and selling shares, he acted on the advice of recognised share brokers and the loss was due partly to unforeseen circumstances which no amount of foresight could have averted and the negligence of the share-brokers themselves who made purchases beyond the limits of deposits kept with them by the appellant. It appears to us that the appellant had absolutely no experience in the share business and the profits which he earned just after entering the business might have made him unduly optimistic. Every man must be deemed to be responsible for the way in which he conducts his business and although we cannot go to the length of saying as the District Judge has done that the type of speculation into which the appellant entered is dangerous to society, we cannot absolve him from all responsibility in the matter and the District Judge, in our opinion, was not wrong in saying that the speculation was of a rash and hazardous character. We hold therefore that under Section 42 (1) (f), Provincial Insolvency Act, the Judge had every right to refuse to pass an Order of absolute discharge.

3. The second point put forward by Dr. Basak, in our opinion, is perfectly sound and the appellant is entitled to succeed on that point. The Order of the District Judge postponing the discharge of the insolvent till he paid eight annas in the rupee is an Order which in our opinion is not warranted by the provisions of the Provincial Insolvency Act. Under Section 41, Sub-section (2), Provincial Insolvency Act, the Court may either (a) grant or refuse an absolute Order of discharge or (b) suspend the operation of the Order for a specified time or (c) grant an Order of discharge subject to any condition with respect to any earnings or income which may afterwards become due to the insolvent or with respect to his after-acquired property. As laid down in Sub-section (3) of Section 42, the Court has the right of exercising the powers of suspension and attaching conditions to an insolvent's discharge under heads (b) and (c) concurrently, that is to say, it may suspend the operation of the Order for a specified period and at the same time attach conditions to the Order in the shape of payments out of the future earnings or after-acquired properties of the insolvent. The Order made by the District Judge in the present case does not come either under Clause (b) and (c) of Section 41, Sub-section (2) or both of them taken together. The discbarge is not suspended for a specified period but for an indefinite length of time, till eight annas in the rupee is paid. Such an Order as has been stated above cannot be made under Sections. 41 and 42, Provincial Insolvency Act, though Section 39(l)(c), Presidency Towns Insolvency Act, allows an Order suspending discharge till a dividend of four annas in the rupee is paid to the creditors. The result therefore is that the Order made by the District Judge should be set aside. The question for our consideration now is what should be the proper Order made in the present case.

4. Mr. Gupta who appears for one of the creditors has stated to us that it is not necessary in the present case to suspend the discharge for a specified period and his client would be satisfied if an Order is made in terms of Section 41(2)(c), Provincial Insolvency Act. He says that certain conditions should be attached to the Order of discharge as regards subsequent earnings and also as regards properties which he might acquire in the future by inheritance or otherwise. His suggestion is that with regard to the future earnings of the insolvent himself, he should be allowed a sum of Rs. 1200 a year for the maintenance of himself and his family and if there is anything in excess of that amount, then half of that amount should be handed over to the receiver for payment to his creditors till the creditors are paid eight annas in the rupee. With regard to properties which the insolvent might acquire in future by inheritance or otherwise, he suggests that so much of the properties should be handed over to the receiver as would satisfy the dues of the creditors to the extent of eight annas in the rupee. Mr. Gupta does not say that this will continue for ever but suggests that it might be limited for a period of 10 or 12 years from this date. The Official Receiver and other creditors who have appeared separately through different advocates have left the matter entirely to us.

5. On a consideration of the circumstances of this case and keeping in mind the suggestion made by Mr. Gupta, the Order which we desire to make is as follows: The insolvent will be granted a conditional discharge under Section 41 (2) (c), Provincial Insolvency Act. The discharge will take effect immediately subject to the following conditions: Whatever income the insolvent might make either from his trade, profession or calling or as profits of any property which he might acquire by inheritance or otherwise in future within a period of 10 years from this date, half of the amount that is in excess of Rs. 1200 a year should be paid to the receiver annually for the satisfaction of the dues of his creditors and these payments would not cease until the period of 10 years expires or the creditors receive payment to the extent of eight annas in the rupee. The insolvent will have to submit accounts to the receiver every six months showing the income he makes from all sources during this period. Nothing in our Order will in any way prejudice the insolvent or the receiver to institute legal proceedings against creditor 1, Rai Bahadur Beldeodas Ramesh. war in respect of securities which are said to be in his possession. We make no Order as to-costs.

Blank, J.

6. I agree.


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