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Brojendra Nandan Saha and anr. Vs. Nekunja Behari Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported inAIR1935Cal174,154Ind.Cas.775
AppellantBrojendra Nandan Saha and anr.
RespondentNekunja Behari Das and ors.
Cases ReferredMung Kin v. Arunachalam Chetty
Excerpt:
provincial insolvency act (v of 1920), sections 10 and 5 - 'debtor,' whether can be interpreted in plural--three brothers filing joint petition for adjudication--competency. - .....1907), that the said reasons would also apply to the case of an application made against several joint debtors and that consequently a declaration of insolvency cannot be asked for in one petition against several joint debtors. in the said decision it was further observed that there is no provision in the provincial insolvency act for proceeding, against two or more persons, who are partners, in the name of the firm. the decisions aforesaid are no longer law in view of the fact that the rules framed by this court under s 79, provincial insolvency act (5 of 1920), presuppose a joint petition by a partnership or a firm (vide, rr. 19 to 24).3. the word 'debtor' used in section 10 of the act, which lays down the conditions on which the debtor's petition may be presented may, under the.....
Judgment:

1. This is an appeal preferred by certain creditors from an order adjudicating three persons as insolvent. The three persons so adjudicated are brothers, who alleged that they had been carrying on a business in silk which proved a failure involving them in a heavy debt to the extent of Rupees 44,000 odd in consequence of which they had been compelled to close the business. The debts were set out in a schedule annexed to their petition, and it was stated that some of the creditors had obtained decrees and that in respect of some such decrees some of the properties of the three brothers had already been attached, while in respect of others execution would shortly be applied for Schedules of joint properties, movable as well as immovable, and of joint claims against some debtors not already barred were also appended to the petition.

2. The substantial point urged in the appeal is that a joint petition by the three brothers was not maintainable. Reliance in this connexion has been placed upon the decisions in Sorada Prosad Ukil v. Ram Sukh Chanda (1905) 2 CLJ 318 and Kali Charan v. Hari Mohan 1920 Cal 964. The former of these decisions was passed when the provisions as to insolvency were contained in the then Code of Civil Procedure (Act 14 of 1882) and it was held that Section 344 of the Code did not contemplate a joint application by several judgment-debtors to be adjudged insolvent, and that if in execution of a joint decree against several persons their joint property was attached and all or some of them applied to be declared insolvents, each must make a separate application under Section 344 of the Code and the case of each of them should be tried separately from that of the others. The decision proceeded upon the view that if a contrary view was adopted there would be serious inconvenience in holding the investigation and trial. In the latter decision, the reasons given as aforesaid being adopted it was held, under the Provincial Insolvency Act ( (SIC) of 1907), that the said reasons would also apply to the case of an application made against several joint debtors and that consequently a declaration of insolvency cannot be asked for in one petition against several joint debtors. In the said decision it was further observed that there is no provision in the Provincial Insolvency Act for proceeding, against two or more persons, who are partners, in the name of the firm. The decisions aforesaid are no longer law in view of the fact that the rules framed by this Court under S 79, Provincial Insolvency Act (5 of 1920), presuppose a joint petition by a partnership or a firm (vide, Rr. 19 to 24).

3. The word 'debtor' used in Section 10 of the Act, which lays down the conditions on which the debtor's petition may be presented may, under the General Clauses Act, 10 of 1897), S 13, be interpreted in the plural; and if the conditions mentioned in Section 10 aforesaid are satisfied there is no other provision in the Act in consequence of which such a joint petition would not be maintainable Under Section 5 of the Act, the powers and procedure of the Court, in proceedings under the Act are to be the same as in the exercise of its original civil jurisdiction. And the true test to apply, in our opinion, is to see whether a joint petition, treated as a plaint, would be bad for multifariousness, that is to say for misjoinder of causes of action or of parties.

4. The two decisions on which the appellants rely have been dissented from in several cases. In Mamayya v. K.K.R. Rice Mill Co. 1921 Mad 294 it has been pointed out that the ground of inconvenience on which they proceeded is not so substantial as it would at first seem, and it was held that the members of a joint Hindu family can be adjudicated insolvents on a single petition by a creditor, if they are liable on a joint debt and have been guilty of a joint act or acts of insolvency. That was a decision under the Act of 1907. A later decision of the same Court, Punniah v. Kermal Firm 1927 Mad 124 which is a decision under the present Act, is to the same effect and has perhaps gone further. The same view has been taken in the Burma High Court in Mung Kin v. Arunachalam Chetty 1925 Rang 36, All these no doubt are cases of a petition against several joint debtors. But we do not see why the same view should not be taken in respect of a petition by several joint debtors. We accordingly hold that the appellants' first contention should be overruled.

5. The other objection urged is that there were circumstances suggesting that the debts alleged are fictitious and all assets have not been disclosed, and from these it is argued that the finding of the Judge that the debtors are not able to pay their debts should be reversed. We find that the learned Judge has given very good reasons, supported by adequate materials, for holding that a prima facie case, which is all that is necessary for the order he has made, has not been made out. If bad faith or concealment of fact is disclosed at a later stage the Act makes ample provisions for dealing with the same. The appeal is dismissed with costs two gold mohurs.


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