S RAJA CHETTY Vs. KHIARAM KUSHIRAM
HIGH COURT OF MADRAS
S. RAJA CHETTY
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Govinda Menon, J. -
(1.) The only question which has been argued by Mr. Rajagopalan, for the appellant is that there is no proof in the case that an act of insolvency has been committed by the petitioner and, there fore, the adjudication ought not to have been, made. On 4-8-1952 the learned Insolvency Judge in an order granting time to the appellant to pay the debt due to the petitioning creditor states as follows: "This is a petition to adjudge the debtor insolvent on the ground that he allowed the attachment in execution of a decree obtained against him by the petitioning creditor to continue in respect of a sum of Rs. 27. The fact is not disputed." The learned Judge eventually granted time to the insolvent and when the matter came up afresh before him on 3-11-1952. it was found that the debtor alone appeared and was not represented by counsel. The debtor requested for further time praying that he wanted to sell some properties and find some money. But the learned Judge was not satisfied that the request was bona fide or reasonable one. Therefore the petitioner was adjudged insolvent.
(2.) Mr. Rajagopalan contends that Section 13(2), Presidency Towns Insolvency Act, should be invoked with the result that in this case in the absence of any proof regarding the act of insolvency, the order of the learned Judge cannot be maintain ed. What is contended is that the petitioning creditor should have got into the 'witness box' and adduced prima facie evidence of the act of insolvency. Subsection 2(b) is to the effect that at the hearing the court should require proof of the act of insolvency. This contemplates a stage before notice is issued to the insolvent. Admittedly in this case notice has been issued before adjudication and, therefore, the provision actually applicable is Section 13(5), which is to the effect that the court may make an order of adjudication if it is satisfied with the proof above referred to or if on hearing the petition is posted to some other day and the debtor does not appear and service of the petition is proved unless in the opinion of the court, the petition ought to have been presented before some other court having insolvency jurisdiction. The purport of this sub-section is that after notice has been issued and at the hearing date, if the court is satisfied on prima facie evidence adduced, that an act of insolvency has been committed, or if the insolvent does not appear, in either of those cases, the court is entitled to adjudge him an insolvent.
(3.) As we have stated already, there is no oral evidence regarding the act of insolvency. But the insolvent himself admitted that his properties have been attached for a sum of Rs. 27 and such an attachment has been in existence for more than 21 days. These facts would be sufficient to bring the case within Section 9(e), which is to the effect that an act of insolvency has been committed by the debtor, if any of his properties have been attached for a period not less than 21 days in execution of a decree of any court for payment of money. Here is a case where on the admission of the insolvent himself, an act of insolvency has been committed. In such circumstances, we do not think that there is any necessity for any formal proof of the act of insolvency by anybody on behalf of the petitioning creditor, getting into the witness-box and proving the fact. This being the only point which has been argued before us and in our opinion the point not being substantial, the appeal is dismissed. No order as to costs.;
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