Arnold Jacob Aaron vs Ramta Singh

P.N. Mookerjee, J.—The Appellant before us was the creditor of the Respondent, originally to the extent of Rs. 29,500 and odd, out of which he was able to realise Rs. 20,000 and the balance, namely, Rs. 9,500 and odd, remained outstanding. Being unable to realise this amount, he applied to the court below u/s 7 of the Provincial Insolvency Act, 1920, for adjudication of the debtor Respondent as insolvent. This application was made on September 15, 1959, and upon that application, an order of adjudication was made by the court below ex parte, the debitor Respondent not appearing, on December 14, 1959.

By that order, apparently, June 1, 1960, was proposed to be the date for application of the debtor for final discharge. The order, however, did not expressly mention the same and there was some confusion over this matter, but, eventually, it was rectified and, by the order of the count below, dated January 30, 1960, it was specifically provided that the debtor should apply for discharge within June 1, 1960, directing, also in express terms, necessary and consequent modification of the earlier order.

As contemplated by law, during the pendency of the above proceeding, the Official Receiver was appointed Receiver of the insolvent''s estate and there were some attempts, made by the said Official Receiver, at the instance of the petitioning creditor, to ascertain and bring before the court the properties of the insolvent. The said attempts, however, proved unsuccessful but the creditor Appellant was repeatedly applying before the court below to the effect that the taxi, bearing No. W.B.T. 433, belonged to the insolvent debtor and should be proceeded against by the Official Receiver, as his (the debtor insolvent''s) property, for the purpose of the present proceeding.

It appears that over this car, there has been some confusion in the court below. According to the applicant creditor, there was the original taxi, W.B.T. 433, which became obsolete (unserviceable) and was no longer on the road. Thereafter, there was a replacement car which, however, was not actually registered but can be identified only by the Chasis No. 337365 and Engine No. 337786, which particulars, also, were given by the applicant creditor, and there was the third car, namely, the present new Taxi bearing No. W.B.T. 433, which is still plying on the road. Although there are papers on the record, suggesting these three different cars, there is no specific averment on oath on the part of the creditor applicant to show the existence, at one time or other, of the said three different cars. This appears to have resulted in the above confusion and the court below appears to have proceeded on the footing that the Original Taxi, W.B.T. 433, was really the car which was sought to be proceeded against by the creditor applicant through the Official Receiver, and upon that view, having regard to the admitted intermediate suit on the Original Side of this Court, which, according to the creditor applicant, was in respect of the second of the above two cars, which had no registration number but could be identified by the Chasis and Engine numbers, given above, the court below has held that the question of title with regard to the car in question is concluded against the applicant creditor by reason of the decree, passed in that suit on the Original Side of this Court. The result has been that there has been no proper enquiry with regard to the cat, which was really sought to be proceeded against by the applicant creditor, through the Official Receiver. But such an enquiry is imperative and essential and, if, on such enquiry, that car is found to belong to the insolvent debtor, it will come under the custody of the Official Receiver and will be available for satisfaction of the debts of the insolvent debtor. In the circumstances, it does not seem to us to be proper and that, indeed, is not the law-that, merely because the original time, fixed for the debtor insolvent''s applying for discharge, has expired, the present proceeding should at once be annulled, leaving the applicant creditor to his remedies under the ordinary or general law. The court, indeed, is not bound under the present amended Section 43(1), to annul the order of adjudication simply because the time, fixed for the insolvent''s applying for final discharge, has expired. The law has made ample provision, giving ample powers to the court to take necessary steps for the purpose of completing any enquiry, which may be necessary for purposes of the proceeding, and, for that purpose, to extend the time for the debtor insolvent''s discharge and also to postpone the order of annulment until the said enquiry is completed and necessary steps are taken as a result of the said enquiry.

We further find that, in this case, at the instance of the applicant creditor, summonses were issued on certain persons for production of certain records and papers in connection with the above three cars, to which reference has been made above, in exercise of the court''s powers u/s 59A, of the Provincial Insolvency Act, but their failure to comply with the said summonses of the court was not followed by any further step, as contemplated and/or allowed by law.

In the circumstances, we would set aside the order of annulment of adjudication, passed by the court below on October 24, 1960, extend the time for the insolvent debtor''s application for discharge till February 1, 1962, with liberty to the court below, as is already available to it under the law, to extend or further extend the said time, if necessary, for purposes of the present proceeding, and direct the said court to investigate into the creditor applicant''s allegation that the new Taxi, bearing No. W.B.T. 433, which is still plying on the road, is the property of the insolvent debtor and, if satisfied as to the truth of the said allegation, to take necessary steps in regard to the said Taxi in accordance with law. The Official Receiver will remain the Receiver of the insolvent debtor''s property until the present proceeding is finally terminated.

The applicant creditor, when the matter goes back to the court below, will file a proper affidavit, specifying and showing clearly that the three cars, in respect of which he had the summonses, issued against his witnesses, as aforesaid, are three different cars, so that the above decision of this Court on its Original Side in the matter of the second of the above two cars, even if it is unchallengable, would not be res judicata and would not be conclusive against him in regard to his claim with regard to the third of the aforesaid three cars, namely, the present Taxi, bearing No. W.B.T. 433. The court below will, also, on the application of the present Appellant, take such further steps as may be neces-sary and as may be authorised by law to ensure that the summonses, issued to the applicant-creditor''s witnesses, already cited or any other witness who may be cited by him in the matter or for whom application may be made by him (the applicant creditor) are complied with or necessary steps or further steps are taken in the matter in accordance with law. We are told by the Appellant that of the aforesaid witnesses, Anandi Lal Poddar is dead. So far, therefore, as that witness is concerned, no further step or proceeding will be necessary, but the court below Will take necessary steps, as directed hereinbefore, as against the other witnesses, or in respect of any other relevant witness, who may be bona fide desired to be summoned by the applicant creditor for the purpose of proving his case.

It is only necessary to add, that, as regards the immovable properties in East Punjab, alleged to be belonging to the debtor insolvent, no further steps appear to be necessary or possible on the present materials on record, but, if the applicant creditor can furnish better particulars of the said properties and can satisfy the court below prima facie that they belong to the insolvent debtor, further steps, as authorised by law, may be taken by the said court in regard to the said properties also.

The appeal is allowed as above, the order complained against, namely, the order of the court below, annulling the adjudication of the Respondent, is set aside and the said court is directed to proceed further in the matter in accordance with law in the light of the observations made and the directions given hereinbefore.

There will be no order as to costs in this appeal.

Amaresh Roy, J.

I agree.