(BOHRA) GANGA NATH Vs. KUNWAR ZALIM SINGH

JUDGEMENT

(1.) This is an appeal from an order of the Additional Judge of Aligarh in an insolvency matter. The facts are briefly as follows : A petition was filed in the Court of insolvency against the present appellants by a firm Ram Dayal Roop Kishore on 26 February 1929. "While this was pending, but more than three months after the alleged acts of insolvency, viz., on 30 April 1929 another petition was put in by Zalim Singh to the effect that he had no objection to the appellants being declared insolvent. On 19 October 1929 the original petitioning creditors made an application to withdraw their petition, and this was allowed by the trial Court. An appeal was filed against this order by Zalim Singh, who claimed that he should have been allowed to substitute his own name for that of the original petitioning creditor and to pursue the insolvency proceedings. The question considered by the lower appellate Court was whether Zalim Singh could be allowed to be substituted for the original petitioning creditors after three months had elapsed from the date of the act of insolvency. This question the Court decided in favour of Zalim Singh, and consequently the debtors have appealed against that decision.

(2.) It has been argued with much ability by Mr. Chaturvedi that under the provisions of the Act the Court had no jurisdiction to substitute the name of Zalim Singh. Under Clause (c), Sub-section (1), Section 9, Provn. Ins. Act, a creditor shall not be entitled to present an insolvency petition against a debtor unless the act of insolvency on which the petition is grounded has occurred within three months before the presentation of the petition,

(3.) and in the present case it is admitted not only that Zalim Singh's application to be substituted was made more than three months after the act of insolvency but that his original petition to the Court on 30 April 1929, in which he acquiesced in the insolvency proceedings, was also more than three months after that date. It is true, the argument proceeds, that under Section 16 of the Act, where the petitioner does not proceed with due diligence on his petition; the Court may substitute as petitioner any other creditor to whom the debtor may be indebted in the amount required by this Act in the case of a petitioning creditor.