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In Re: Haripada Rakshit and - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in40Ind.Cas.94
AppellantIn Re: Haripada Rakshit and ;ex Parte Binodint Dassee
Excerpt:
presidency towns insolvency act (iii of 1909), section 36 - court, power of--examination--application, contents of--order refusing application, grounds of. - .....36 of the presidency towns insolvency act. the order was obtained upon the application of the official assignee and the applicant seeks to set aside the order on three grounds: (i) that the insolvent having obtained his discharge no order under section 36 can now be made; (ii) that the application on which the order was made disclosed no grounds for making such order; (iii) that as litigation may ensue between the applicant and the official assignee, an order for her examination would be inequitable. 2. i deal with the third ground first; and with regard to this ground i hold that the case is upon the facts eminently one for the examination of the applicant under section 36, if such an examination can now be ordered, and i see no ground for refusing an order under section 3d because.....
Judgment:

JUDGMENT

1. This is an application by Sreemutty Binodini Daasee to set aside an order of the Registrar in Insolvency, dated the 6th June 1916, for her examination under Section 36 of the Presidency Towns Insolvency Act. The order was obtained upon the application of the Official Assignee and the applicant seeks to set aside the order on three grounds: (i) that the insolvent having obtained his discharge no order under Section 36 can now be made; (ii) that the application on which the order was made disclosed no grounds for making such order; (iii) that as litigation may ensue between the applicant and the Official Assignee, an order for her examination would be inequitable.

2. I deal with the third ground first; and with regard to this ground I hold that the case is upon the facts eminently one for the examination of the applicant under Section 36, if such an examination can now be ordered, and I see no ground for refusing an order under Section 3d because litigation may ultimately ensue between the Official Assignee and the party to be examined; if this were so, it would in many cases render the valuable provisions of Section 36 nugatory. The case seems to me quite different when there is actual litigation in progress between the Official Assignee and the person sought to be examined.

3. With regard to the second ground, it appears from the petition of the Official Assignee that the order was made upon his allegation that the applicant appeared capable of giving information respecting the insolvent's dealings and properties. 1 should not myself have made an order upon an application of this kind. I think the Official Assignee should state shortly the nature of the information likely to be given by the person sought to be examined, and the dealings or properties of the insolvent to which such information will relate. But I have before me ample materials to justify the making of the order, if it can be made at this stage, and accordingly I do not propose to set aside the order upon this ground.

4. It now remains to consider the first and most important ground upon which the order is sought to be set aside.

5. Section 36 provides that the Court may, on the application of the Official Assignee, or of any creditor who has proved his debt at any time after an order of adjudication has been made, summons before it the insolvent or any person known or suspected to have in his possession any property belonging to the insolvent, or supposed to be indebted to the insolvent or any person whom the Court may deem capable of giving information respecting the insolvent, his dealings or property.

6. The section fixes no limit during which the powers under it may be exercised, but it was urged before me, on behalf of the applicant, that the powers cease on the insolvent's discharge, because Section 43 of the Act provides what is to be done by a discharged insolvent to assist in the realization of his property and, it is said, that section would not have been necessary if the provisions of sections 33-37 were still subsisting after the insolvency. It may be that so far as the insolvent is concerned, the provisions of Section 36 are not applicable after his discharge, having regard to the provisions of Section 43, but I see no reason why this should be so in the case of the other persons referred to in Section 36. To so hold would, I think, be prejudicial to the insolvent himself, as it might delay his obtaining his discharge, as, if the Court's powers under Section 36 came to an end upon the same being granted, the Court might hesitate to grant such discharge at as early a period as, but for this, it would otherwise do. The powers of the Court are very wide under Section 36, and I think the Court would, in using them, be careful to see they were not used unduly and unnecessarily after a considerable time had elapsed from the time of the discharge, but I see nothing in the Act to limit the powers of the Court under Section 36 to the period before" discharge, and accordingly I think, in a proper case, the Court can even after discharge use the powers given by Section 36. I think the present is a proper case upon the materials before me, and accordingly the first ground of the application also fails and the application must be dismissed with costs.


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