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Kali Charan Saha Vs. Hari Mohan Basak and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in58Ind.Cas.531
AppellantKali Charan Saha
RespondentHari Mohan Basak and ors.
Cases ReferredSarada Prasad Ukil v. Ram Sukh
Excerpt:
insolvency - one application for several debtors to be adjudicated insolvents, whether permissible--procedure. - .....not be asked for in one petition for or against more than one parson, and that the objection to a joint application by joint debtors which was pointed out in the case of sarada prasad ukil v. ram sukh chandra 2 c.l.j. 318 applied to an application made against several joint debtors, and pointed out that the creditors of each individual must have notice, and the claim of each creditor against each debtor mast be investigated. the learned judge accordingly held that a single application against seven debtors could not be maintained and he allowed the original application to be amended by striking out six names from it, but as regards the six new applications, he held that they could have effect from the date on which they were filed and not from the date of the original application, the.....
Judgment:

1. These appeals arise out of proceedings under the Provincial Insolvency Act (III of 1907).

2 The appellants before us applied to the Court below for adjudging seven persons, who were members of Hindu joint family, insolvents by one single petition. The learned District Judge on the 22ad August 1917 held that seven applications must be made as seven different persons were sought to be declared insolvents. In pursuance of that order, on the 8th September 1917, six more applications were made, each praying to have seven persons declared insolvent. The learned District Judge thereupon pointed out that this was bad and that there must be a separate petition regarding each person. On the 12th September 1917, six other petitions ware filed. ON the next day, 13th September, these six petitions and a petition for amendment of the original application were heard. The learned District Judge was of opinion that a declaration of insolvency could not be asked for in one petition for or against more than one parson, and that the objection to a joint application by joint debtors which was pointed out in the case of Sarada Prasad Ukil v. Ram Sukh Chandra 2 C.L.J. 318 applied to an application made against several joint debtors, and pointed out that the creditors of each individual must have notice, and the claim of each creditor against each debtor mast be investigated. The learned Judge accordingly held that a single application against seven debtors could not be maintained and he allowed the original application to be amended by striking out six names from it, but as regards the six new applications, he held that they could have effect from the date on which they were filed and not from the date of the original application, the result being that as against the six debtors the petitions were filed too late to give the petitioner the benefit of Section 37 of the Act.

3. The petitioner has appealed to this Court and the first ground taken is that an application can be maintained against several debtors jointly.

4. We think that the reasons given in the case of Sarada Prasad Ukil v. Ram Sukh, Chandra 2 C.L.J. 318 (though that case was decided under Chapter XX of the Civil Procedure Code) apply to an application made against several debtors who are jointly liable.

5. The next contention is that an application flan be made against several partners as a firm, and that, therefore, the original application was valid.

6. There is, no doubt, provision in the English Bankruptcy Act that any two or more parsons being partners or any person Harrying on business under a partnership name may take proceedings or be proceeded against under this Act in the name of the firm (Section 119 of the English Bank rusty Act). There is a similar provision in the Presidency Towns Insolvency Act (see Section 99). There i.e., however, no such provision in the Provincial Insolvency Act. But it is unnecessary to consider the question in the present case, because even if partners can be proceeded against in the name of the firm under the Provincial insolvency Act, the respondents were not proceeded against as partners or as a firm. In the application for insolvency, these respondents were described as having inherited a sweetmeat shop from their father and as holding it as a joint family property, and it was prayed that the said debtors might be adjudged insolvents. In the subsequent petition filed on the 8th September 1917, it was stated that 'as the debtors are seven brothers and as they contrasted the debts and caused insolvency proceedings to be taken while living as members of a Hindu joint family, so all of them are jointly and severally liable to the creditors for their dues'. It appears, therefore, that throughout the proceedings these respondents were treated not as partners or as members of a firm but as members of a Hindu joint family. In these circumstances, we think that one joint application against them all could not be maintained.

7. It is contended that it is a question merely of amendment. But so far as the original application could be amended by striking out the names of six other persons and retaining the name of one, it has been allowed by the learned District Judge. The six other applications were not applications for amendment of the original application but six different applications against cash of those persons and we are unable to hold in these circumstances that the District Judge was wrong in taking the view that these six applications could not be treated as having been filed on the 4th January, the date of the original application.

8. The appeals are accordingly dismissed with costs--two gold mohurs in all to be paid to respondent Hari Mohan Basak, in Miscellaneous Appeal No. 396, we assess the hearing fee at one gold mohur and in the other six cases (Miscellaneous Appeals Nos. 407 to 412) we allow one gold mohur as costs to be equally divided.


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