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In Re: F. De Momet, an Insolvent - Court Judgment

LegalCrystal Citation
Decided On
Reported in(1894)ILR21Cal634
AppellantIn Re: F. De Momet, an Insolvent
insolvent act (11 and 12 vic, clause 21), section 5 - jurisdiction--residence--insolvency. - doubt, but still his wife and family were residents of that place. it would seem in that case the insolvent's coming down to calcutta was only for the purpose of filing his petition in this court, and the fact of residence in calcutta was not made out.3. i do not think either of these cases affects the conclusion i come to on the present facts.

Sale, J.

1. I think I must hold that this Court has jurisdiction to entertain this petition. The insolvent was an indigo planter for many years and subsequently a tea planter. Some time in 1879 a decree was obtained against him for a large sum of money. It was provided in that decree that a certain sum should be paid by him towards satisfaction of the decree. Every month the amount payable under that decree has been paid in, and payments were continued till the end of December 1893. Early in 1893 the insolvent, then Superintendent of a garden in Darjeeling District, went to England on leave accompanied by his daughter. The family of the insolvent consists of himself, daughter and wife. The wife appears to be mentally affected and has been for some time past in St. Vincent's Home. While in England, the insolvent obtained the information that the garden which formed part of the estate of Doctor Brougham was to be sold in course of administration, and accordingly on 1st November 1893 he communicated with the Bank in this country to transfer a sum of Re. 5,000 odd, which stood to credit of his account with the Bank, to the name of his daughter. He was then purposing to return to this country and leave his daughter behind in England, and his object in making the transfer was to provide for his daughter who was left in England, and also to enable her to support the mother in this country. Very shortly afterwards he was dismissed by the proprietors of the garden, inasmuch as it appeared there was some question as to how long the garden was to be carried on, and he was offered either payment of three months' salary in lieu of notice, or the option of returning to this country and rejoining his appointment for that period. He accepted the former and accordingly his connection with this country entirely ceased on the 11th November 1893. He then determined to come out to this country to seek for employment in tea in which his experience had been gained. He came out, and on arrival at Calcutta he took up his abode at the Great Eastern Hotel, intending to stay there till he obtained employment. His object, he says, in going to the Great Eastern Hotel was that it was a place much frequented by persons interested in tea, and he would be more likely to hear of employment likely to suit him at that place. He made enquiries of various persons of whom he had knowledge, but was unable to obtain any offer or promise of work. Then, he says, finding there was no prospect, the season being advanced, of obtaining any work, and seeing no possibility of paying the moneys due under the decree, he was compelled to seek the assistance of the Insolvent Court. He went to his attorneys, and on the 8th January his petition was filed. On the 16th January he left Calcutta on a visit to the Dooars, returning again to Calcutta in February and after a short stay in Calcutta obtained the offer of work on a tea estate in the Dooars on the terms of obtaining his board and lodging. That offer he accepted, and that post he still holds. The question is whether at the time of his filing his petition here on the 8th January he was residing within the jurisdiction of this Court within the meaning of Section 5 of the Insolvent Act. I am quite satisfied on the evidence of Mr. De Momet that his conduct has been bond fide throughout. The sum transferred was the savings between the amount he was by the decree ordered to pay to his creditor, Rs. 300 a month, and the full amount of his salary, and he considered he was entitled to deal with this amount in the way he did. The question as to what is a sufficient residence to give jurisdiction to this Court has been the subject of judicial determination more than once. As far as I understand, no case goes to the length of holding that residence under Section 5 must be a permanent residence. It seems to me the object of the section is to extend the benefits of the Insolvency Act to those who are bond fide residents within the jurisdiction at the time of the filing of the petition. The term is used to distinguish the position of such persons from that of a person who merely comes in and uses his presence within the jurisdiction as the means of obtaining the benefit of the Act, and it also has the effect of excluding persons merely in the position of visitors. The cases show moreover that great stress is laid upon the fact as to whether or not the person said to reside within the jurisdiction had at the time any other residence elsewhere. It is quite clear from the facts of this case that the insolvent had no place of residence outside the jurisdiction of this Court, and if the insolvent was not residing within the jurisdiction at the time he filed his petition it is difficult to say he was residing outside the jurisdiction.

2. Moreover, under Sections 16 and 17 of the Code of Civil Procedure a very short period of actual living or dwelling within the jurisdiction of a Civil Court has been held sufficient to constitute residence so as to give such Court jurisdiction in suits by or against persons said to be residing within its jurisdiction. Under all these circumstances, I think the facts here show that the insolvent was residing within the jurisdiction of this Court at the time when his petition of insolvency was filed. The cases which have been cited, viz., In re Tietkins (1 B.L.R. O. C, 84) and In the matter of Ram Paul Singh (8 Cal. L.R. 14), are I think distinguishable. In the first case the insolvent had a permanent residence outside the jurisdiction, and in the second case the insolvent was a native of this country who had his family residence at Bhaugulpore. His dwelling house had been sold no doubt, but still his wife and family were residents of that place. It would seem in that case the insolvent's coming down to Calcutta was only for the purpose of filing his petition in this Court, and the fact of residence in Calcutta was not made out.

3. I do not think either of these cases affects the conclusion I come to on the present facts.

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