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Prayag Shaha Saheb Ram Vs. Dwijapada Roy and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1932Cal623
AppellantPrayag Shaha Saheb Ram
RespondentDwijapada Roy and anr.
Excerpt:
- .....like rs. 300 or it may be even less. the result is that when the insolvent applied for his discharge the learned judge found that the receiver had no complaint against his conduct in connexion with the insolvency. the receiver took the view that the insolvent had done his duty and tried to assist the receiver as much as he could and the learned judge in spite of the opposition of the present appellant said that:the creditor has not financed the receiver in order to recover the insolvent's assets, though he promised to do so.2. in the circumstances, he gave an immediate order of discharge on 4th january 1930. that he had no business to do at all because it is quite clear that the insolvent came within the scope of the provisions of section 42 of the act, and it is absurd in a case.....
Judgment:

Rankin, C.J.

1. In this case, the insolvent presented his own petition on 28th April 1927. It appears that he had a grain business in Calcutta and that owing to loss he had closed it, there being some Rs. 4,600 due by him to various creditors of the business. He had a long list of people who were indebted to him amounting to some Rs. 2,592, but in his Insolvency it does not appear that the receiver has been able to collect all this money. We are told that it may be that he has been able to collect something like Rs. 300 or it may be even less. The result is that when the insolvent applied for his discharge the learned Judge found that the receiver had no complaint against his conduct in connexion with the insolvency. The receiver took the view that the insolvent had done his duty and tried to assist the receiver as much as he could and the learned Judge in spite of the opposition of the present appellant said that:

the creditor has not financed the receiver in order to recover the insolvent's assets, though he promised to do so.

2. In the circumstances, he gave an immediate order of discharge on 4th January 1930. That he had no business to do at all because it is quite clear that the insolvent came within the scope of the provisions of Section 42 of the Act, and it is absurd in a case of this sort to say that the fact that the insolvent's assets are not of a value equal to eight annas in the rupee has arisen from circumstances for which he cannot justly be held responsible. Everybody is responsible for the way in which he conducts his own business and this section was never meant to apply to people merely because they unsuccessfully trade. It is intended to apply to cases of a very different type. The learned Judge did not consider the case from that aspect at all. So he gave an order of discharge on 4th January 1930. It so happened that the insolvent's father died on 2nd February 1930 leaving apparently a will by which a substantial interest was given to the mother: but the mother herself died on 7th April 1930, all within some four months after the order of discharge. In the meantime, the creditor has brought an appeal in this High Court and the important provision of the Act which applies and has now to be considered is Clause (4), Section 28, which says:

All property which is acquired by or devolves on the insolvent after the date of an order of adjudication and before his discharge shall forthwith vest in the Court or receiver

and so forth. Now, ordinarily it would be quite a normal thing in the case of a small trader who has traded unsuccessfully and filed his own petition to suspend his discharge for six months. In this case, if we do that, as we now know, it will sweep away all that he will get from his father's estate and, up to a certain point, there can be no doubt that the creditors ought to get the benefit of the fact that in February or April 1930 the insolvent appears to have come by a little bit of money. It is said that this particular share is very little indeed. It is said that it may be some Rs. 700 only and therefore if we suspend his discharge for six months whether it is great or small it will all go to the benefit of the creditors. In these circumstances, we have to consider whether that is the order that we should make. It is open to us to make any other order under Section 41 of the Act granting him his discharge subject to any condition as regards after-acquired property. What we propose to do considering the whole matter is this: we will grant him his discharge as on 4th January 1930, but that will be subject to this condition that he is to pay out of whatever he gets from his father's estate in money or in kind--land or otherwise-- Rs. 500 to the receiver for the benefit of the creditors. We make that a condition which we attach, but we will allow his discharge to take effect as on 4th January 1930. There will be no order as to costs.

Pearson, J.

3. I agree.


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