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Joy Chandra Das Vs. Mahamed Amir - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in44Ind.Cas.143
AppellantJoy Chandra Das
RespondentMahamed Amir
Excerpt:
insolvency proceedings - court, power of, to hold summary proceedings for discovering properties of insolvent--creditor, remedy of, where insolvent conceals property. - .....to summon before it the wife of the insolvent and to examine her and direct her to transfer to the official receiver the property vested in her name, if it proves to be the property of the insolvent. the learned judge's order that this is not a proper proceeding is right. but the course that he has suggested that the appellant should adopt is not accurate. his view is that the appellant can maintain a suit to recover the property. it is quite clear that he cannot. the usual order that is made in a case of this nature is that the creditor should apply to the court to direct the official receiver to institute and continue a suit against the wife of the insolvent to recover the property in question, making it a condition precedent that the creditor so applying that the official receiver.....
Judgment:

Fletcher, J.

1. This is an appeal by a scheduled creditor in an insolvency proceeding. The appeal is preferred against an order made by the learned District Judge in whose Court the insolvency proceedings are pending refusing to examine certain persons and the insolvent and his wife with reference to a portion of the property of the insolvent, which is alleged to have been concealed by the insolvent by having vested the same in the name of his wife. The case has been argued before us that the Court must have inherent jurisdiction to hold summary proceedings which Section 27 of the Bankruptcy Act of 1883 authorizes--to which there is a corresponding section in the Presidency Towns Insolvency Act. We cannot assume that any such summary powers are given. The case must turn on the sections of the Act itself. The Provincial Insolvency Act contains no section corresponding to Section 27 of the Bankruptcy Act. The Court has, therefore, as the learned Judge remarks, no jurisdiction to summon before it the wife of the insolvent and to examine her and direct her to transfer to the Official Receiver the property vested in her name, if it proves to be the property of the insolvent. The learned Judge's order that this is not a proper proceeding is right. But the course that he has suggested that the appellant should adopt is not accurate. His view is that the appellant can maintain a suit to recover the property. It is quite clear that he cannot. The usual order that is made in a case of this nature is that the creditor should apply to the Court to direct the Official Receiver to institute and continue a suit against the wife of the insolvent to recover the property in question, making it a condition precedent that the creditor so applying that the Official Receiver shall institute such a suit does put the Official Receiver in funds and properly indemnifies him against the costs in the suit. That is obviously the proper course for the appellant to take. He must apply to the learned District Judge, if he has a prima facie case, as the report of the Official Receiver suggests that there is a prima facie case, that the Official Receiver be directed to institute a suit against the wife of the insolvent on these terms namely, that the creditor should put the Official Receiver in funds and indemnify him against the costs of the suit, and if he fulfils those conditions, the Official Receiver should bring a suit to recover this property from the wife of the insolvent. The suggestion that this can be done in the course of the insolvency proceedings by a summary proceeding is not supported by the terms of the sections of the Provincial Insolvency Act. The present appeal, therefore, so far as the main question, is concerned, must stand dismissed. As I have already stated, the creditor is entitled to make that application to the learned Judge with reference to a suit being instituted by the Official Receiver for recovery of this property. As the respondent is an insolvent and is supposed not to have any money except the tools necessary to carry on his trade and the necessary bedding and clothing for himself and his family, although he is quite able to indulge in engaging eminent lawyers to conduct his case, we do not make any provision for the costs of this appeal.

Chatterjea, J.

2. I agree.


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