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Jogendra Nath Saha Vs. Rai Kishori Dasi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1932Cal817,140Ind.Cas.465
AppellantJogendra Nath Saha
RespondentRai Kishori Dasi and ors.
Excerpt:
- .....insolvency act, a debtor is not entitled to present his petition unless he is unable to pay his debts and his debts amount to five hundred rupees and so forth. now, under the previous act there were many scandalous contentions on the part of creditors who wanted to make the proceedings begin by a complete examination--finding out the man's debts and his assets in order to find out whether he should be insolvent or not and that purely nonsensical course had to be dealt with by the legislature and it was carefully provided by section 24 that the court on the day fixed for the hearing of the petition was to require proof, amongst others, of the matter that the debtor was entitled to present his petition; that is to say, that the conditions outlined by section 10 existed. it went on to.....
Judgment:

Rankin, C.J.

1. In these cases each of two brothers appeals from an order of the learned District Judge of Jessore refusing to adjudicate him insolvent on his own petition. There has been in my judgment a distinct amount of misconception in the way the matter was treated in the lower Court. The position is that by Section 10, Provincial Insolvency Act, a debtor is not entitled to present his petition unless he is unable to pay his debts and his debts amount to five hundred rupees and so forth. Now, under the previous Act there were many scandalous contentions on the part of creditors who wanted to make the proceedings begin by a complete examination--finding out the man's debts and his assets in order to find out whether he should be insolvent or not and that purely nonsensical course had to be dealt with by the legislature and it was carefully provided by Section 24 that the Court on the day fixed for the hearing of the petition was to require proof, amongst others, of the matter that the debtor was entitled to present his petition; that is to say, that the conditions outlined by Section 10 existed. It went on to say:

Provided that where the debtor is the petitioner he shall for the purpose of proving his liability to pay his debts, be required to furnish only such proof as to satisfy the Court that there are prima facie grounds for believing the same and the Court, if and when so satisfied, shall not be bound to hear any further evidence thereon.

2. In the present case the principled that proviso appears to me to be thoroughly unnoticed. The creditors alleged that the insolvents had landed properties, they allege that the insolvents were carrying on business; and having failed in these two contentions, they next contended that whereas under Section 22 the debtors ought to have produced their books of account on the making of the order admitting the petition the debtors had not satisfactorily explained how they came to be, as they said, unable to produce the books for three certain years. I cannot find from beginning to end that the District Judge had any prima facie difficulty in inferring that these people were unable to pay their debts, but he thought that the books would show how they became unable to pay their debts and that they would show when they first became unable to pay their debts. It appears that the insolvents suffered an attachment in 1334 B. S. and that they have been trying to wind up their business ever since and it is said that they are only now carrying on a very small trade just enough to keep themselves and their family in existence; it is perfectly obvious that this is a case where an adjudication order should be made. In these appeals we will make the adjudication order here and now remand the matter to the District Court. There will be no order as to costs. The debtor is to apply for damages within one year from to-day.

C.C. Ghose, J.

3. I agree.


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