Alok Sharma, J. - (1.) THIS is an appeal under Section 75 of the Indian Solvency Act, 1920 (hereinafter 'the Act of 1920') against the order dated 7 -2 -1998 passed by the Additional District Judge No. 1 Jaipur City, Jaipur dismissing a claim before the Insolvency Court for Rs. 57,324.70 and interest thereon against the insolvent debtor one Bhag Chand Soni, since deceased and now represented through his Legal Representative (hereinafter 'the insolvent debtor').
(2.) THE facts of the case are that proceedings under the provisions of the Act of 1920 were taken against the insolvent debtor Seth Bhag Chand Soni proprietor of M/s. Suharmal Gambhirmal by one Mst. Manorama Devi. Therein, following an order of adjudication by the Insolvency Court one Chhuttan Lal Shrimal Advocate was appointed as Receiver on the estate of insolvent debtor Seth Bhag Chand Soni. On 10 -5 -1963 one M/s. Jeetmal Jasraj through its proprietor Mangi Lal filed a claim for an outstanding debt of Rs. 57,324.70 and sought its recovery along with interest from the estate of the insolvent in the hands of the Receiver. During the pendency of the application Mangi Lal expired. It appears that the successors of applicant Mangi Lal were approached by representatives Sudarsan Soni, son of the insolvent deceased Seth Bhag Chand Soni seeking assignment of the debt in issue to Sudershan Soni HUF. A deed of assignment dated 3 -12 -1989 came to be executed by the legal representatives of Mangi Lal erstwhile proprietor of M/s. Jeetmal Jasraj assigning the debt outstanding to Sudershan Soni HUF for Rs. 18,000/ -. It was duly notarized. A letter to the same effect was addressed by the assignors to the Receiver Chhuttan Lal Shrimal Advocate and also sent to the Insolvency Court. The relevant part of the deed of assignment dated 3 -12 -1989 reads thus: "1. That assignors as owners of the debt of Rs. 57,324.70 (Rs. Fifty seven thousand three hundred twenty four and seventy paise only) principal and interest due from Seth Bhagchandji Soni of Ajmer who was the sole proprietor of M/s. Suharmal Gambhirmal of Ajmer and its various branches in different names at different places including the branch of M/s. Moolchand Nemichan of Jodhpur and whose estate vests in Receiver appointed by the Insolvency Court of Additional District Judge No. 1 Jaipur, in insolvency case No. 6 of 1962 do hereby assign and transfer absolutely to the assignee all the aforesaid debt due and owing to the assignor and all the benefits, rights, interest to the Assignors claim filed with the Receiver to the estate of Seth Bhagchandji Soni, sole proprietor of M/s. Suharmal Gambhirmal of Ajmer and its various branches at different names and all benefits and advantage thereof inclusive of interest past and future, in consideration of Rs. 18,000/ - (Rs. Eighteen Thousand only) paid by the assignee to the assignors." (Underlining mine) But then the executants of the deed of assignment, the appellants herein had second thoughts. Vide a telegram dated 13 -12 -1989 they state to have informed the Receiver that the deed of assignment dated 3 -12 -1989 was fraudulently got executed by the representatives of Sudarshan Soni HUF and even though the consideration recorded in the deed of assignment was Rs. 18,000/ -, the whole of the outstanding debt inclusive of due interest thereon was to be paid to the assignor appellants - -which was not paid. The deed of assignment was thus stated to be unenforceable for reason both of misrepresentation, fraud and failure of consideration. A telegram was also sent to the Insolvency court allegedly on 13 -12 -1989. Letters were also subsequently addressed on 1 -6 -1990 and thereafter on 3 -12 -1990 to the Receiver praying that the deed of assignment dated 3 -12 -1989 be overlooked on ground of it being vitiated by fraud and for reasons of consideration therefor having failed.
(3.) AN application to the same effect then came to be filed before the Insolvency Court praying therein that the deed of assignment dated 3 -12 -1989 be overlooked and whole of the outstanding debt i.e. Rs. 57,324.70 along with interest thereon as pending, be recovered from the estate of Seth Bhag Chand Soni proprietor of M/s. Suharmal Gambhirmal and be paid to the appellants/applicants. No reply to the application was filed either by the assignee Sudarshan Soni HUF or other party impleaded therein.;