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Dinajpur Trading and Banking Co. Ltd. Vs. Probhash Chandra Sen and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1933Cal151
AppellantDinajpur Trading and Banking Co. Ltd.
RespondentProbhash Chandra Sen and ors.
Cases ReferredVadilal v. Shah Khushal
Excerpt:
- .....mentioned in the application it was stated that the firm styled mahendra chandra sen and sris chandra chaki owned one rice mill standing on about 8 or 9 bighas of lease-hold land on bura sibtala road, sahapore in the district of 24-parganas. it appears that on 24th february 1930, one nalini mohan rai chaudhuri put in a petition before the court, stating that both mahendra chandra sen and sris chandra chaki had brothers. mahendra chandra sen, it was stated had three brothers, and sris chandra chaki had four brothers; all these brothers, the sen brothers and the chaki brothers were members of two hindu joint families, and all of them were interested in the rice business referred to in the petition for insolvency, who participated in the profits of the said business, and had share.....
Judgment:

Guha, J.

1. This appeal is directed against an order passed by the learned District Judge of the 24-Parganas, on 9th August 1930, exercising jurisdiction under the Provincial Insolvency Act 1920. The facts of the case giving rise to the appeal may be briefly stated: On an application of two creditors, Manmatho Nath Purkait and Sudhir Chandra Purkait filed on 26th November 1929, an order of adjudication was passed by the learned District Judge, In the application by the creditors it was stated that acts of insolvency had been committed by Mahendra Chandra Sen and Sria Chandra Chaki carrying on a business in paddy as a partnership firm, and in the list of properties mentioned in the application it was stated that the firm styled Mahendra Chandra Sen and Sris Chandra Chaki owned one rice mill standing on about 8 or 9 bighas of lease-hold land on Bura Sibtala Road, Sahapore in the district of 24-Parganas. It appears that on 24th February 1930, one Nalini Mohan Rai Chaudhuri put in a petition before the Court, stating that both Mahendra Chandra Sen and Sris Chandra Chaki had brothers. Mahendra Chandra Sen, it was stated had three brothers, and Sris Chandra Chaki had four brothers; all these brothers, the Sen Brothers and the Chaki Brothers were members of two Hindu joint families, and all of them were interested in the rice business referred to in the petition for insolvency, who participated in the profits of the said business, and had share in the same. The petition for insolvency and the application of Nalini Mohan Rai Chaudhuri that there are other partners in the firm were considered by the learned District Judge, on 24th February 1930, and it was ordered by consent of all parties that the firm of Mahendra Chandra Sen and Sris Chandra Chaki and its partners Mohendra and Sris, who had appeared in Court after service of notice, be adjudged insolvent. It appears from the order sheet that on 25th March 1930, the alleged debtors, according to the application of Nalini Mohan Rai Chaudhuri, Provas Chandra Sen, Prosanno Chandra Sen, and Surendra Chandra Sen, as also Khitish Chandra Chaki, Satis Chandra Chaki, Kamakhya Chandra Chaki and Bhabesh Chandra Chaki filed their objections before the learned District Judge.

2. The objections raised by the Chaki Brothers on the one hand and by the Sen Brothers on the other controverted the allegations made in the application of Nalini Mohan Rai Chaudhuri and the objectors prayed for the rejection of the said application. It was stated by the objectors that they were not jointly and severally liable for the debts incurred by Mahendra Chandra Sen and Sris Chandra Chaki, and that neither the Sen Brothers nor the Chaki Brothers were members of joint Hindu families. On the objections raised by the persons named above sought to be impleaded in the proceedings as debtors, the learned District Judge raised the following issues: (1) Are the opposite party viz., Provas Chandra Sen, Surendra Nath Sen Prasanna Chandra Sen, Khitish Chandra Chaki, Satis Chandra Chaki, Kamakhya Chandra Chaki and Bhabesh Chandra Chaki partners of the Insolvent Firm, Mahendra Chandra Sen and Sris Chandra Chaki; and (2) Is the present petition made by Nalini Mohan Rai Chaudhuri maintainable as against the opposite party The material issue raised for determination in the case by the learned District Judge, was directed to the question whether the Sen Brothers and the Chaki Brothers mentioned above were or were not to be adjudged insolvent along with Mahendra Chandra Sen and Sris Chandra Chaki, so that the properties belonging to the members of the two families, of the Sens on the one hand, and the Chakis on the other-might be added to the assets of the Firm of Mahendra Chandra Sen and Sris Chandra Chaki. On 23rd June 1930 petitions were filed by creditor Nalini Mohan Rai Chaudhuri praying for reasons stated therein that the opposite parties, the three Sen Brothers and the four Chaki Brothers, as also the insolvent Mohendra and Sris might be directed to answer interrogatories set forth in the petitions filed in Court. Notices were issued on the parties to show cause why they should not be directed to answer the said interrogatories. On 30th June 1930 after hearing the parties concerned, the learned District Judge declined to allow the interrogatories. Thereupon the proceedings were allowed to continue. Witnesses in support of the cases of the parties were examined. From an order recorded on 28th July 1930 it appears that Jogendra, Chandra Chackerbatty, the Managing Director of the Dinajpur Trading and Banking Co. Ltd,, appeared by a pleader, and was allowed to intervene as a creditor in the proceeding pending before the learned District Judge. On the materials placed before the Court, consisting of oral and documentary evidence, the learned District Judge dismissed the application of the creditor Nalini Mohan Rai Chaudhuri. The Dinajpur Trading and Banking Co. Ltd., has appealed to this Court.

3. A preliminary objection was taken to the hearing of the appeal by the learned advocate appearing for the respondents, the three Sen Brothers and the four Chaki Brothers. It was contended before us on behalf of these respondents, that, the Dinajpur Trading and Banking Co. Ltd., had no right of appeal as the company was not in a position of a creditor whose debt had been proved. It was further contended that the order of the learned District Judge was not such an order which was made appealable by the Provincial Insolvency Act, in view of the provisions contained in Section 4 read with Section 75 and Sch. 1 of the Act. The Dinajpur Trading and Banking Co. Ltd., was allowed to appear in the proceedings in the Court below and intervened in the same, as a creditor. The debt of the company had not at the time been proved; but all the same it could not, in our judgment, be said that the company was not a 'person aggrieved' within the meaning of the Provincial Insolvency Act: see in this connexion the decision of this Court in the case of Rustomje Dorabjee v. K.D. Brothers : AIR1927Cal163 . We hold that the Dinajpur Trading and Banking Co. Ltd., was a 'person aggrieved' within the meaning of the Provincial Insolvency Act and had therefore a right of appeal, although the debt of the company had not, till the time when it was allowed to intervene in the insolvency proceeding, been proved before the Court.

4. In regard to the second contention bearing upon the preliminary objection urged before us, it is to be noticed that Section 4, Provincial Insolvency Act, empowers the District Judge to decide all questions whether of title or priority or of any nature whatsoever and whether involving matters of law or of fact, which may arise in any case of insolvency coming within the cognisance of the Court or which the Court may deem it expedient or necessary to decide for the purpose of doing complete justice or making a complete distribution of property. This section read with Section 75 and Sch. 1, Provincial Insolvency Act, does confer a right of appeal to the aggrieved party in a case in which an order of the present description has been made by the District Judge. Furthermore, it appears to us that even on the assumption that the provisions relating to appeal as contained in the Provincial Insolvency Act do not cover an order of the nature which we are considering in the present case, there could be no doubt that in view of Section 75, Clause (3) the order was appealable with the leave of this Court. In the present case, the appeal having been admitted and allowed to be proceeded with, it was, in our judgment, tantamount to the granting of leave as contemplated by the Provincial Insolvency Act. The view we take of the matter is in consonance with the decision of the Patna High Court in the case of Gopal Ram v. Magni Ram AIR 1928 Pat 338. The preliminary objection raised on behalf of the respondents must therefore be overruled.

5. On the merits, the learned advocate for the appellant has in the first place, urged before us that the refusal by the learned District Judge of the application of Nalini Mohan Rai Chaudhuri for compelling the respondents before us, viz., the Sen Brothers and the Chain Brothers to answer the interrogatories filed in Court, was wholly unjustifiable in law. The learned District Judge in refusing to allow the interrogatories, expressed the opinion that the creditors could not be allowed to prove their case by extracting information from the alleged partners of the insolvent, instead of proving their case by producing evidence; that the creditor Nalini Mohan Rai Chaudhuri was fishing for information of facts which it was his business to prove. The interrogatories have been placed before us and we have given our best attention to the contents of the said interrogatories.

6. It appears to us to be clear that the learned Judge's view in the matter of his disallowing the interrogatories is correct. A party is not entitled to administer interrogatories for obtaining discovery of facts which constitute exclusively the evidence of his adversary's case. In our judgment therefore there is nothing wrong in the learned District Judge's decision in disallowing the interrogatories as filed in Court. As it has been indicated already, the object of the creditor Nalini Mohan Rai Chaudhuri and that of the creditor, the Dinajpur Trading and Banking Co. Ltd., the appellant before us, were to have Mahendra Chandra Sen and his three brothers, as also Sris Chaki and his four brothers, adjudged insolvents, so that the properties owned by the Sen Brothers and the Chaki Brothers might be added to the assets of the Firm Mahendra Chandra Sen and Sris Chandra Chaki. We have been asked by the learned advocate for the appellant to proceed with the presumption against the respondents the Sen Brothers on the one hand and the Chaki Brothers on the other, on the question of their being members of two joint Hindu families. Even on the supposition that there was any such presumption arising from the facts and circumstances of the case before us, from the mere fact that a person carrying on business is a coparcener in a joint Hindu family, it does not necessarily follow that all his coparceners are his partners in that business. The fact of partnership must be proved by evidence showing that the persons alleged to be partners have agreed to combine their property, labour and skill in the business and to share the profits and losses in the same: see in this connexion the decision of Chandavarkar, J., in the case of Vadilal v. Shah Khushal (1903) 27 Bom 157(His Lordship then considered evidence and concluded). On the whole, we have no hesitation in agreeing with the learned District Judge in his conclusion that the evidence in the case before us is quite inadequate for the finding that the Sen Brothers at Bogra and the Chaki Brothers at Pabna were partners of the rice-mill at Calcutta. In the result, the appeal fails, and is dismissed. The parties are to bear their own costs in this appeal.

M.G. Ghose, J.

7. I agree.


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