GOVINDARAJA GOUNDER Vs. RANI

JUDGEMENT

(1.) THE point that arises for decision in the two revision petitions relates to the scope and applicability of S. 35 of the Provincial Insolvency Act (referred to herein as the Act ).

(2.) THE brief facts are: One Govindaraju, hereinafter referred to as the petitioning-creditor, filed I. P. 11 of 1951 on the file of the Sub-Court, Vellore, to adjudicate one Dhanappayhan, his wife Kamakshi and his son Srinivasan as insolvents on the ground that a sum of about Rs. 4,000 was due to Govindaraju under three promissory notes of the year 1948 executed in his favour by Srinivasan as well as a separate sum of Rs. 350 due under a promissory note executed in his favour by srinivasan and his parents aforesaid in June 1951. The case of the petitioning-creditor was that Srinivasan's parents, Dhanappayan and Kamakshi, had guaranteed the liability of Rs. 4,000 of Srinivasan under the three promissory notes, aforesaid, that Dhanappayan had executed a mortgage in favour of sivakami Ammal on 25-7-1951 for Rs. 300, that he and his wife Kamakshi had also executed a sale of all his properties to one Srinivasa Reddiar for a sum of Rs. 3,000 and that these alienations constituted acts of insolvency. During the pendency of the insolvency proceedings. Dhanappayan died and his sons and daughters and his second wife and son through the second wife, were impleaded as his legal representatives. At the same time the petitioning-creditor filed O. S. 166 of 1953 on the file of the Sub-Court, Vellore, against Dhanappayan and his two wives and their children for recovery of a sum of Rs. 4780 due under the three promissory notes executed by Srinivasan which were guaranteed by his parents under separate letters of guarantee passed by them in favour of the petitioning-creditor. Both the insolvency petition as well as the suit were resisted by the members of the family of Dhanappayan on the ground that Dhanappayan and his wife did not guarantee the debts of Srinivasan, and that the letters of guarantee relied upon by the petitioning-creditor, purporting to bear the thumb impressions of Srinivasan's parents, were forgeries.

(3.) THE learned Subordinate Judge (Mr. Sadasivam) on a careful consideration of the oral and documentary evidence, came to the clear conclusion that Srinivasan's parents did not pass any letters of guarantee and that it was not proved that those guarantee letters bore their thumb impressions. It is unnecessary to refer in great detail to the reasonings and findings of the learned Subordinate Judge and it is sufficient to state that he came to the clear conclusion, on overwhelming evidence, that the petitioning-creditor had not made out that Srinivasan's parents stood guarantee for the debts in question. In this connection it may be mentioned that the learned Subordinate Judge in particular adverted to the important feature that in the insolvency petition filed by the petitioning-creditor, there was no reference to the alleged letters of guarantee. The result was that the suit O. S. 166 of 1953 and I. P. 11 of 1951 were dismissed as the petitioning-creditor had not proved that dhanappayan or Kamakshi was indebted to him in the sum of Rs. 500.