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In Re: Dinaram Somani and ors. Vs. Bhim Bahadur Sing Chetri and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal427,82Ind.Cas.76
AppellantIn Re: Dinaram Somani and ors.
RespondentBhim Bahadur Sing Chetri and anr.
Excerpt:
presidency towns insolvency act (iii of 1909), sections 36 and 90 - civil procedure code (act v of 1908), order xxi--witness summoned under act, position of--court, jurisdiction of--witness residing more than 200 miles away. - .....pursuance of the order on the 14th september, 1922, when the matter was adjourned until the 30th november. the applicants thereupon returned to darjeeling where they reside, and came down again to calcutta on the 20th november, one of them was attacked by fever on the 23rd november and they both returned to darjeeling on the 26th of that month. the application is based on two grounds, (1) that the order should not have been made as the applicants reside more than 200 miles from calcutta, (2) on the ground that they were not paid travelling and boarding charges. the second ground has not been pressed. so far as the first ground is concerned the applicants rely on section 90(1) of the insolvency act and on order xvi, rule 19 of the code of civil procedure.2. section 90(1) provides that.....
Judgment:

Greaves, J.

1. This is an application by two persons to set aside an order for their examination under Section 36 of the Presidency Towns Insolvency Act made on the 18th August, 1922. By the said order, which was made at the instance of a creditor who had proved his debt and in the presence of the Official Assignee, the applicants were ordered to attend before the Registrar in Insolvency on the 14th September, 1922 to be examined regarding the insolvents, their dealings and properties and they were required to produce their books of account for the year 1920 and a mortgage executed by the insolvents in their favour on the 4th December, 1920. The applicants in fact attended before the Registrar in pursuance of the order on the 14th September, 1922, when the matter was adjourned until the 30th November. The applicants thereupon returned to Darjeeling where they reside, and came down again to Calcutta on the 20th November, one of them was attacked by fever on the 23rd November and they both returned to Darjeeling on the 26th of that month. The application is based on two grounds, (1) that the order should not have been made as the applicants reside more than 200 miles from Calcutta, (2) on the ground that they were not paid travelling and boarding charges. The second ground has not been pressed. So far as the first ground is concerned the applicants rely on Section 90(1) of the Insolvency Act and on Order XVI, Rule 19 of the Code of Civil Procedure.

2. Section 90(1) provides that in proceedings under the Act the Court shall have the like powers and follow the like procedure as it has and follows in the exercise of its Ordinary Original Civil Jurisdiction with the proviso that: nothing in the' sub-section is in any way to limit the jurisdiction conferred oil the Court under the Act. Order XVI, Rule 19 exempts a witness from personal attendance unless he resides within the local limits of the Court's Original Jurisdiction or within 200 miles with the limitation therein provided.

3. Section 36(1) of the Insolvency Act 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 for adjudication has been made, summon 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.

4. A perusal of the sub-section makes it clear that the person to be summoned does not, at any rate in all cases, fall within the category of an ordinary witness to whom the provisions of Order XVI relate. It deals rather with the discovery and recovery of property the with the ordinary testimony which a witness can give, and the proviso to Section 90(1) of the Insolvency Act makes it clear that it was not intended to fetter the Court in the exercise of its jurisdiction under Section 36 by any limitation imposed by the Code of Civil Procedure.

5. I think the contention of the applicants is not well founded and that the Court has power under Section 36 to summon before it persons who reside at a greater distance than 200 miles. I need hardly add that proper travelling and other expenses should be tendered and that so far as possible the convenience of persons required to attend should be considered.

6. As the application fails the applicants must pay the costs.


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