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In Re: Kissory Mohan Roy Shaha - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in36Ind.Cas.990
AppellantIn Re: Kissory Mohan Roy Shaha
Excerpt:
presidency towns insolvency act (iii of 1909), section 36(1), application under, if may be made ex parte - calcutta high court insolvency rules, rules 17, 18, 19, 30. - .....no previous notice of motion served upon him at the time of the application for leave to examine him, and, that is to say, that the order for his examination was made ex parte. the application is dismissed with costs.
Judgment:

Greaves, J.

1. This is an application made on behalf of one Lachmi Chand Karnowat to set aside an order made on the 26th April 1916 by the Registrar for his examination under Section 36 of the Presidency Towns Insolvency Act. The order was obtained ex parte at the instance of one Balkishen Bagri, a creditor of the Insolvent It was made on the petition of Balkishen Bagri filed on the 15th April 1916, and the petition alleges that Balkishen Bagri filed an affidavit in proof of his claim, and I understand from the petition that the Official Assignee admitted the proof by a letter, dated the 31st July 1915, addressed to Balkishen's attorney. The ground upon which the applicant seeks to set aside the order is, that it was made ex parte.

2. Section 36(1) of the Presidency Towns 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 of adjudication has been made, summon before it, in such manner as may be prescribed, 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, and that the Court may require any such person to produce any documents in his custody or power relating to the insolvent, his dealings or property.

3. Rule 17 of the rules made under the Act provides that every application to the Court (unless otherwise provided by these rules, or the Court shall in any particular case otherwise direct) shall be made by motion supported by affidavit.

4. Rule 18 provides that where any party other than the applicant is affected by the motion, no order shall be made unless upon the consent of such party duly shown to the Court or upon proof that notice of the intended motion and a copy of the affidavit in support thereof have been duly served upon such party, but the rule contains a proviso that the Court may make an ex parte order if delay would entail serious mischief.

5. If these rules govern applications under Section 36 of the Act, then the ex parte order was clearly wrong unless the Registrar thought that any delay would entail serious mischief.

6. But I was referred to another rule by Counsel who opposed the application, that is to say to Rule 30, which is as follows: Every application to the Court under Section 33 of the Act shall be in writing and shall state shortly the grounds upon which the application is made. This rule to my mind clearly contemplates a procedure other than that laid down under Rules 13 and 19 and it contains no provision for service of the application upon the person sought to be examined, such as is contained in Rule 19. Under these circumstances the inference to my mind is irresistible, that applications under Section 36 are intended to be made ex parte and that this is the manner prescribed by the rules framed under Section 112 of the Act.

7. I am fortified in this view by a reference to the English Bankruptcy Act of 1914, 4 and 5 George V, Chapter 59. The section of that Act which corresponds to Section 36 is Section 25, the wording is almost identical, except that the section of the English Act does not contain the words in such manner as may be prescribed.' Rules 26 and 27 of the English Act are identical with Rules 17 and 18 of the Presidency Towns Insolvency Act, and Rule 74 of the English Act is identical with Rule 30 of that Act.

8. Form 144 of the Forms under the English Act is a form of summons under Section 25 of that Act, see William's Bankruptcy Practice, 11th Edition, page 645, to attend for examination and a perusal of that form to my mind indicates that this is the first notification to the person to be examined and that he has had no previous notice of motion served upon him at the time of the application for leave to examine him, and, that is to say, that the order for his examination was made ex parte. The application is dismissed with costs.


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