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G.L. Sitaram Vs. R.M. Redden - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal529,91Ind.Cas.760
AppellantG.L. Sitaram
RespondentR.M. Redden
Excerpt:
provincial insolvency act (v of 1920), section 41 - order of discharge, conditional--creditor with-drawing money, whether can appeal--discharge, when to be granted. - .....array' the words 'guard of the railway with a large family' and for two, years we substitute five years as the period of postponing the discharge the remarks apply equally to the present case.4. the argument on behalf of the appellant is that since the application in insolvency was made the respondent has had an increase of pay and also that he has no longer to make the monthly payment of rs. 31 odd on account of one of the monthly deductions shown in his petition. but that, in our opinion, is no ground for further delaying the respondent's discharge prima facie on his giving up the whole of his property he was entitled to become a free man. the period for which the decharge should be suspended as the punishment for his misconduct in incurring debts beyond his means is not to be.....
Judgment:

1. This is an appeal against the order of the District Judge of Midnapore granting the insolvent a conditional discharge under Section 41 of the Provincial Insolvency Act V of 1920. The insolvent in this case R.M. Redden is a guard employed in the Bengal Nagpur Railway. At the time of his application in, insolvency that is on the 27th October, 1919 his total pay with allowances was Rs. 248. His total debts, as shown in the application were Rs. 3,619. Except his pay and allowances he had no other assets. On the 21st February 1920 the Court made an order directing him to pay Rs. 25 a. month. This amount was paid more or less regularly up to July 1923. In the meantime he made two applications for his discharge. The first was refused on the 29th August 1922. His second application, on which was passed the order against which this appeal is preferred, was made on. the 10th April 1923. The order that is passed was that he should get a conditional discharge on condition that he pays the creditor No. 1 Rs. 30 a month for one year. This creditor No. 1, is the appellant before us. At the time this order was passed the Court also passed an order that the appellant should get the money at present in deposit in Court.

2. A preliminary objection has been taken that this appeal is not maintainable since the appellant has taken advantage of this order. In our opinion there is no substance in this objection. The money had been paid into Court before the order was made and was available for distribution among the creditors. The Court in distributing this sum among the creditors passed the order for payment 10 the appellant independently of any order made on the respondent's application for discharge. By taking money out of Court the appellant did nothing which could in any way prevent him either by equity or estoppel from appealing against an independent order of conditional discharge.

3. But on the merits we Can see no ground for interfering with this order. Under Clause (2) Sub-clause (e) of Section 41 of the Act the order passed was one which the Court had full power to pass, and we are unable to say that in passing this order he did not exercise a proper judicial discretion. The principles on which an order of discharge should be granted or postponed have been set out by Lord Justice Vaughan Williams in the case of Gaskell, In re Gaskell Ex parte (1904) 2 K.B. 478 at p. 482 : 73 L.J.K.B. 656 : 91 L.T. 221 : 11 Manson 135 : 20 T.L.R. 469 'After all, the overriding intention of the Legislature in all Bankruptcy Acts is that the debtor on giving up the whole of his property shall be a free man again, able to earn his livelihood and having the ordinary inducements to industry. Sometimes it is not right that the bankrupt should be free immediately, he must pass through a period of probation, and theoretically there may be cases in which he ought not to be free at all, but prima facie he is to give up every thing he has, and on doing that he is to be made a free man. Now what is the position of the bankrupt in this case? If I thought that there was any tangible expectation of his receiving a larger income than that which is necessary for his support in his position of life as an officer in the army, then I should see the propriety of suspending his discharge for a longer period, or even of setting aside some portion of his income. I see no reason to suppose that a suspension of his discharge for two years will not meet the justice of the case'. If in this case we substitute for the words 'officer in the array' the words 'guard of the Railway with a large family' and for two, years we substitute five years as the period of postponing the discharge the remarks apply equally to the present case.

4. The argument on behalf of the appellant is that since the application in insolvency was made the respondent has had an increase of pay and also that he has no longer to make the monthly payment of Rs. 31 odd on account of one of the monthly deductions shown in his petition. But that, in our opinion, is no ground for further delaying the respondent's discharge prima facie on his giving up the whole of his property he was entitled to become a free man. The period for which the decharge should be suspended as the punishment for his misconduct in incurring debts beyond his means is not to be measured by the amount of his debts. He has now paid, a considerable sum and his discharge has been postponed for about five years. We are informed that the total amount directed to be paid by the conditional order has not been paid and though it was not paid within the period prescribed the lower Court when his attention was drawn to the failure of the insolvent to make some payment was satisfied with his explanation. His order of the 13th December 1923 is not very clearly worded but his meaning obviously is that the time for payment is extended and that the insolvent will be entitled to an order of discharge when 12 payments of Rs. 30 have been duly made.

5. On a consideration of the circumstances of the case we hold that the order passed was a proper order and the discretion of the learned District Judge was properly exercised. The appeal is accordingly dismissed with costs. We assess the hearing fee at 3 gold mohurs.


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