HAMEED KOYA Vs. ARUNACHALAM NADAR
HIGH COURT OF KERALA
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(1.)This Civil Revision Petition has been referred to the Division Bench by a learned Single Judge of this Court for the purpose of deciding the question raised in the petition. The revision petitioner filed a petition under S.15 of Act XXXI of 1958 for a settlement of his debts. In the petition he has scheduled 29 1/2 cents of property as the asset which belonged to him and an aggregate amount of Rs. 6,969/- as the debt owing by him. The debt mentioned arose partly out of a partnership business carried on by the petitioner and by one Kunhu Moideen and partly out of transactions of the petitioner in his own individual capacity.
(2.)Counter Petitioners 1, 5, 11, 12, 14 and 15 filed objections to the petition. They raised various contentions and the only material contention with which we are concerned in this revision petition is the contention raised by them that the petitioner had not shown in the petition all the assets which belonged to him. They contended that the petitioner's father had properties worth more than 15 lakhs of rupees when he was adjudicated an insolvent in I. P. No. 3/1100 of the District Court and that the petitioner was entitled to 2/9 share in the assets of his deceased father which might be available after discharge of the debts of the father by the official receiver. In the petition the petitioner expressed his willingness to surrender all the properties belonging to him to the court as required by S.15. Although he did not mention the fact that he was contingently entitled to a share in the assets of his father in the event of there being a surplus after paying off the father's creditors, there was an undertaking in the petition that he was prepared to surrender all his properties. But when he was examined as pw. 1 he categorically stated in his cross examination that he was unwilling to surrender that contingent right to the court, although in another portion of his cross examination he had stated that he was willing to surrender the properties which the receiver took possession from his father.
(3.)The court below came to the conclusion that since the petitioner had not specifically shown in the petition his right to get the surplus in the properties after paying off the father's creditors in I. P. No. 3 of 1100, or expressed his willingness to surrender the same to the court when realised, the petition was not maintainable. That court also came to the conclusion that the debt due from the partnership of which the petitioner was a partner was contracted for the purchase of goods, and since that debt was specifically excluded from the definition of the word 'debt' under S.2 clause (c) of Act XXXI of 1958, he was not entitled to have it settled in these proceedings or found his petition under S.15 upon it. The other ground mentioned by the lower court for dismissing the petition was that some of the debts mentioned ' were bogus ones. In view of these facts and circumstances the court dismissed the petition.
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