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Sheikh Golam Rahman Vs. Sheikh Wahed Ali and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in16Ind.Cas.470
AppellantSheikh Golam Rahman
RespondentSheikh Wahed Ali and ors.
Cases ReferredGirwardhari v. Jai Narain
Excerpt:
insolvency - applicant not insolvent--whether court bound to adjudicate--provincial insolvency act (iii of 1901), section 15. - .....1910, dismissing an application made by the petitioner appellant to be declared an insolvent. the learned judge has disposed of the application after examining the applicant alone and his judgment, which is very brief, is as follows: 'the application is refused with costs. the property transferred to the mother is worth, more than the debts and there is a legal presumption that the transfer was fraudulent. if the mother succeeds in establishing her right against the creditors, the debtor may apply again to be declared insolvent.' the petitioner, the original applicant, has appealed and the appeal has been opposed by the creditors who opposed the original application.2. in support of the appeal, reliance is placed on the decisions of this court in three cases reported in 15 calcutta.....
Judgment:

1. This appeal is against an order of the District Judge of 24-Pergannahs, dated the 9th May 1910, dismissing an application made by the petitioner appellant to be declared an insolvent. The learned Judge has disposed of the application after examining the applicant alone and his judgment, which is very brief, is as follows: 'The application is refused with costs. The property transferred to the mother is worth, more than the debts and there is a legal presumption that the transfer was fraudulent. If the mother succeeds in establishing her right against the creditors, the debtor may apply again to be declared insolvent.' The petitioner, the original applicant, has appealed and the appeal has been opposed by the creditors who opposed the original application.

2. In support of the appeal, reliance is placed on the decisions of this Court in three cases reported in 15 Calcutta Weekly Notes and on another case reported in 32 Allahabad The cases in 15 Calcutta Weekly Notes are Udai Chand Maity v. Ram Kumar Khara 15 C.W.N. 213 : 12 C.L.J. 400 : 7 Ind. Cas. 394 Sheikh Samiruddin v. Srimati Kadar Moyee Dasi 15 C.W.N. 244 : 12 C.L.J. 445 : 7 Ind. Cas. 691 and Kali Kumar Das v. Gopi Krishna Roy 15 C.W.N. 990 : 12 Ind. Cas. 48 and the Allahabad case is Girwardhari v. Jai Narain 32 A. 645 : 7 A.L.J. 835 : 7 Ind. Cas. 39. Relying on these decisions, it is contended on behalf of the appellant that the learned District Judge was not justified in dismissing the application in the way in which he has done. It is contended that on an application for adjudication being made by a debtor, he is entitled to be adjudged an insolvent and that, under Section 15 of the Act, the learned Judge cannot deal with the case in the way in which he has done in the present instance and dismiss the application on the ground that it may not have been made in good faith. We do not think it necessary to express any opinion on the broad contention which has been advanced before us but we would observe that the learned Judges of the Allahabad High Court have noticed that an Insolvency Court has inherent powers to dismiss an application if it is not made with a bona fide view of obtaining an adjudication but for an inequitable or collateral purpose; and it seems open to question whether, if, on the facts before the Court, it is clear to the Judge that the applicant is not an insolvent, the Court is, under the law, bound to adjudicate him an insolvent. But, in the present case, the learned Judge has really not gone into the application at all and we think, in consequence, that the case must be sent back for re-trial. The evidence as recorded does not support the conclusion that the applicant is able to pay his debts nor is there anything to show, on the face of the judgment, that the grounds on which possibly the learned Judge might have arrived at the conclusion that the application was not bonaa fide are made out. In these circumstances, we think the appeal must be decreed, the judgment and order of the lower Court must be set aside and the case sent back to that Court for decision according to law. Costs will abide the result. We assess the hearing fee in this Court at two gold mohurs.


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