S K VENKATARAMA AIYAR Vs. ABURAN SHERIFF

JUDGEMENT

(1.) This is an appeal against the order of the District Judge of South Arcot adjudicating the appellant an insolvent. The facts prior to this adjudication are a little complicated, and the arguments founded thereon have taken some time to hear. The petitioning creditors filed two suits against the debtor, O. S. No. 548 of 1922 for gunny bags, and O. S. No. 583 of 1922, for some amounts due in a partnership business. There was moreover a suit O. S. No. 580 of 1922 by the insolvent against these creditors for accounts due on an alleged partnership between him and them. This suit, on the 7 of November 1922, was dismissed and the other suits by the creditors were decreed. In May 1923 the insolvent made some alienations of his properties and deposited the amount due in O. S. No. 548 into Court and the Court-sale was set aside. On the 23 May 1923 a petition for adjudication was filed in the District Munsif's Court. In the meantime appeals had been filed in O. S. No. 583 and O. S. No. 580. On the 13 August 1923 creditors petitioned the District Court to adjudicate the appellant an insolvent, and on the 1 December 1923 a stay of the petition was obtained pending the disposal of the appeals. On the 14 April 1924 the appeal in O. S. No. 548 was allowed and the stay was dismissed. The appellant was therefore in a position to ask for restitution of about Rs. 585 which he paid out in order to set aside the Courtsale. In O. S. No. 580, the appellant's suit, he obtained a preliminary decree for accounts and in O. S. No. 583 an amount of Rs. 1,059 was decreed against him (the appellant), but it was only to become payable on the passing of the final decree in O. S. No. 580 of 1922. The O. S. No. 580 has been to second appeal when it was decided against the appellant and is now awaiting final appeal under the Letters Patent.

(2.) On the 17 September 1924 the petition for adjudication was considered and the petitioners, were held to be creditors and entitled to present the petition, and two months afterwards the adjudication took place. The learned Judge has held that the petitioner has complied with the conditions precedent set out in Section 9 of the Act to enable him to present the insolvency petition. It is admitted that the large bulk of the debt alleged to be due to the creditors is the amount due under the decree in O. S. No. 583 of 1922, viz., Rs. 1,059 odd, the time for payment of which was postponed till the final decree was passed in O. S. No. 580 of 1922. The learned Judge held that the postponement had not the effect of divesting the petitioners character as creditors and that they were creditors when the petition was filed, and they are still creditors.

(3.) It is contended that it is not sufficient that these petitioners should be creditors at the time the petition was filed but they must be creditors at the time the order of adjudication is passed. We do not find any provision to that effect in the Act although there is a note by Mr. Williams in his book that this obtains in the corresponding provision in the Bankruptcy Act. The question seems to me to be whether a creditor has fulfilled the three conditions precedent set out in paragraph 9 at the time he filed the insolvency petition, viz., (to put it shortly) a debt of Rs. 500, a liquidated sum payable either immediately or at some certain future time and an act of insolvency. With regard to the last requirement no question has arisen in this case. Certain acts of insolvency, namely, alienations of property have been prima facie found by the Judge to exist, and the adjudication is founded upon those, but, as before stated, the objection before us is that the petitioning creditors were not clothed with the proper authority as required by the Act before filing the. petition in the two other respects. We had a great deal of discussion as to whether this decree debt of Rs. 1,059 made payable on the passing of the final decree in O. S. No. 580 is a liquidated sum payable at some certain future time and some decisions were quoted before us, Rangaswami Mudaliar V/s. Srinivasa Mudaliar [1910] M. W. N. 731 Juggomohun Ghose V/s. Manick Chund [1859] 7 M. I. A. 263 and Page V/s. Newman [1829] 109 E. R. 140 to the effect that it must be some definite ascertained debt. Those decisions, as pointed out by the learned vakil for the respondents, all relate to the Interest Act where the words are "certain time" and there has been some discussion as to whether "some certain future time" is something different from "a certain time." Speaking for myself I am rather inclined to think that the expression "some certain future time" means any time in the future which is capable of being ascertained. But I do not propose to decide in this present proceeding what the exact meaning of "some certain future time" in Section 9 (b) means.