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Abdul Kuddus Gazi Vs. Mutual Indemnity and Finance Corporation (India) Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1930Cal576
AppellantAbdul Kuddus Gazi
RespondentMutual Indemnity and Finance Corporation (India) Ltd.
Cases ReferredChhatrapat Singh v. Kharag Singh A.I.R.
Excerpt:
- .....viz., the case cf mal chand v. gopal chandra ghosal [1916] 44 cal. 899 and the case of re: ballav chand serowgee a.i.r. 1923 cal. 703 have no bearing whatsoever. as regards the earlier of the two cases, it appears that the judgment therein was pronounced in september 1916, that is before the date of the decision of their lordships of the judicial committee in the chhatrapat singh's case a.i.r. 1916 p.c. 64 referred to above. therefore, the authority of that case must be taken to be considerably discounted by the observations made by their lordships of the judicial committee. as regards baldeo chand serowgee's case a.i.r. 1923 cal. 703, it may be mentioned that it was not a case for adjudication. it was a case for annulment of adjudication and as has been pointed out in various cases.....
Judgment:

1. We have examined the record in this case and having regard to the judgment of their Lordships of the Judicial Committee in the case of Chhatrapat Singh v. Kharag Singh A.I.R. 1916 P.C. 64, we are unable to say that the order made by the learned District Judge can be sustained. The petitioner, it appears to us has obviously brought his case within the four corners of the statute, namely the Provincial Insolvency Act and he was entitled to an order of adjudication as a matter of right. There is no question of abuse of the process of the Court. It may be that when the petitioner applies for discharge, his conduct during the time which will elapse between the date of the adjudication and the date of the application for discharge will have to be scrutinized and scrutinized carefully and whether an order for discharge should be eventually' made or not must depend on various circumstances which are independent of the circumstances brought to the notice of the Court by the insolvent when he filed his application for being adjudicated as insolvent.

2. The two cases to which our attention has been drawn viz., the case cf Mal Chand v. Gopal Chandra Ghosal [1916] 44 Cal. 899 and the case of Re: Ballav Chand Serowgee A.I.R. 1923 Cal. 703 have no bearing whatsoever. As regards the earlier of the two Cases, it appears that the judgment therein was pronounced in September 1916, that is before the date of the decision of their Lordships of the Judicial Committee in the Chhatrapat Singh's case A.I.R. 1916 P.C. 64 referred to above. Therefore, the authority of that case must be taken to be considerably discounted by the observations made by their Lordships of the Judicial Committee. As regards Baldeo Chand Serowgee's case A.I.R. 1923 Cal. 703, it may be mentioned that it was not a case for adjudication. It was a case for annulment of adjudication and as has been pointed out in various cases both under the Presidency Towns Insolvency Act and under the Provincial Insolvency Act, the discretion of the Court in annulling adjudications cannot be limited except in manner provided by the statute. The Court has a large discretion in the matter and in the exercise of its discretion which on the facts could not be curtailed, Greaves, J., made the order which he did in Baldeo Chand Serowgee's case A.I.R. 1923 Cal. 703. To our mind that case has no bearing and the really important case which determines this case is Chhatrapat Singh v. Kharag Singh A.I.R. 1916 P.C. 64. In that view of the matter, the order of the District Judge, dated 1st March 1930, must be set aside and that of the Subordinate Judge, dated 21st December 1929, restored. There will be no order as to costs.


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