In re: Kakubhai Bhimji Purshottam

Mirza, J.—This is a notice of motion taken out by a creditor of the insolvent for an order that his claim for Rs. 9,305 under a decree of this Court against the insolvent, and set out in a composition deed of which the respondent is the trustee, be admitted by the respondent, and that the decision of the respondent as such trustee in rejecting the claim be set aside.

An objection is taken on behalf of the respondent that the procedure here adopted by way of notice of motion and not an appeal is wrong. Mr. Taleyarkhan has contended that the respondent is an officer of the Court and holds a position similar to that of the Official Assignee, and provisions regarding appeals from the Official Assignee''s orders should apply to him. Reliance is placed for this contention upon Rule 115 of the Insolvency Rules wherein it is provided that every person claiming to be a creditor under any composition or scheme, who has not proved the debt before the approval of such composition or scheme, shall lodge his proof with the trustee thereunder, if any, or, if there is no such trustee, with the Official Assignee who shall admit or reject the same....

In this case as the respondent is appointed trustee under the composition, every creditor of the insolvent would have to prove his claim before the respondent, The contingency contemplated under Rule 115 of proving a claim before the Official Assignee would not arise. I fail to see how on the strength of Rule 115 it could be contended that the trustee under the composition stands in the same position as the Official Assignee. Section 86 of the Insolvency Act provides that if the insolvent or any of the creditors or any other person is aggrieved by any act or decision of the Official Assignee, he may appeal to the Court, and the Court may confirm, reverse or modify the act or decision complained of, and make such order as it thinks just, There is no provision either under the Act or under the Rules for an appeal against the decision of a trustee under a composition or scheme.

The case for the applicant is that his claim under the High Court decree was lodged for proof before the Official Assignee before a composition or scheme was arrived at, and that under Rule 119 as the Official Assignee has neither admitted nor rejected the proof of his claim, the claim must be taken to have been proved before the Official Assignee before the composition or scheme was arrived at. It is contended that the respondent had no jurisdiction under Rule 115 to call for proof of the applicant''s claim or to reject it. This contention, in my opinion, is sound. Whether the matter is regarded in the light of this contention or not, it is clear that even supposing the respondent had jurisdiction under Rule 115 to reject the applicant''s claim, this Court would have jurisdiction to review his order under the terms of Rule 112 of the Insolvency Rules. As the respondent has rejected the applicant''s claim, and the applicant''s contention is that his claim is a good one and default has been made by the respondent in not paying it, the applicant is an aggrieved person within the meaning of Rule 112 and in the absence of any provision for an appeal against the decision of the respondent, he would be entitled, in my opinion, to approach this Court on a notice of motion to have the applicant''s order of rejection reviewed. In any case this Court in the absence of any proper provision would have inherent jurisdiction to revise the order of a trustee under a composition or scheme.

I, therefore, disallow the preliminary objection raised by the respondent.