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Amulya Mohan Bysack Vs. K. MoinuddIn and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1941Cal505
AppellantAmulya Mohan Bysack
RespondentK. MoinuddIn and anr.
Excerpt:
- .....have been paid in full. the only question is, therefore, whether the debtor ought to have been adjudged insolvent or not. it is contended that the debtor did not come within the provisions of section 11 presidency towns insolvency act, as he had not ordinarily resided within the jurisdiction of the court within a year previous to the date of the presentation of the insolvency petition. as regards that the learned judge had before him the affidavits of both parties and he came to the conclusion and was of opinion on those affidavits that that condition was satisfied and that the debtor had ordinarily resided within the jurisdiction of the court within a year of the presentation of the petition. we see no reason to interfere with him on that conclusion. it is further contended that as.....
Judgment:

Derbyshire C.J.

1. The learned Judge refused to make an order annulling the adjudication of the insolvent. From that decision an appeal is brought to this Court. The applicant-appellant is a creditor. The insolvent supports the order of adjudication made against him. The learned Judge could annul the insolvency where in his opinion the debtor ought not to have been adjudged an insolvent or where it was proved to his satisfaction that the debts of the insolvent had been paid in full. There is no contention that the debts of the insolvent in this instance have been paid in full. The only question is, therefore, whether the debtor ought to have been adjudged insolvent or not. It is contended that the debtor did not come within the provisions of Section 11 Presidency Towns Insolvency Act, as he had not ordinarily resided within the jurisdiction of the Court within a year previous to the date of the presentation of the insolvency petition. As regards that the learned Judge had before him the affidavits of both parties and he came to the conclusion and was of opinion on those affidavits that that condition was satisfied and that the debtor had ordinarily resided within the jurisdiction of the Court within a year of the presentation of the petition. We see no reason to interfere with him on that conclusion. It is further contended that as the insolvent who has a share in a landed estate at Dacca had been made a ward of the Court of Wards, and that Court had taken possession of the property of the insolvent with a view to carrying out the duties conferred upon it by the Bengal Court of Wards Act, 1879, the debtor, although he applied to the High Court in insolvency, ought not to have been adjudged an insolvent. It is said that the Court of Wards had jurisdiction to adjust his debts. The Court of Wards is a statutory body set up by the Act of 1879 to deal with landed estates which are in, or are likely to get into, financial difficulties so as to endanger their payment of Government revenue. The purpose of the proceedings in the Court of Wards is in the main to protect the Government revenue-paying immovable estate of the debtor by taking over its administration and adjusting the debtor's liabilities with a view to the revenue being safeguarded.

2. The Insolvency Courts are open to all His Majesty's subjects who fulfil the prescribed conditions. Where a debtor who has not been imprisoned or who has not an attachment subsisting upon his property by reason of a money decree made against him -and such is not the case here-applies to be adjudged insolvent the condition is that he should owe a debt amounting to at least five hundred rupees. There is a decision of this Court that where he does satisfy that condition and applies to be adjudged insolvent then an order is made as a matter of course. That is the case in In Re: Gopaldas Aurora ('26) 13 AIR 1926 Cal 640. The purpose of the Insolvency Acts is to ascertain the debts owing by the debtor, take possession of all his assets and distribute them amongst all his creditors according to law with a view to satisfying as equitably as possible under the circumstances, the claims of all the creditors, and so free the insolvent from his burden of indebtedness.

3. The purposes of the Insolvency Act are wider than those of the Court of Wards Act. It seems to me therefore that the debtor having applied to be adjudged insolvent and his having satisfied the condition laid down by the Act, he was entitled to be adjudged insolvent notwithstanding that his estate or, at any rate, part of it, was already in the hands of the Court of Wards. Enquiries were made by the learned Judge from the Official Assignee as to whether such orders as these had been made previously where the debtor applying to be adjudged insolvent had already become a ward of the Court of Wards, and he was informed by the Official Assignee that such orders had previously been made. We see no reason to depart from the established practice. For these reasons I am of the opinion that this appeal must be dismissed with costs.

Panckridge, J.

4. I agree. In my opinion had it been the intention of the Central Legislature when the Presidency Towns Insolvency Act was passed that its provisions should not apply to persons declared to be disqualified proprietors under Bengal Act 9 of 1879, unambiguous language would have been employed to exclude them.


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