ABDUL WAHID KHAN Vs. ALAN CHAVAS

JUDGEMENT

(1.) This appeal by Abdul Wahid Khan is directed against the Order dated 22nd November, 1978, made by the III Additional District Judge, Bangalore in I.C.No. 16 of 1968, on his file, declaring the present appellant insolvent under Clauses (ii) and(iii) of Section 6(d) of the provincial Insolvency Act, 1920.

(2.) The creditor Alan Chavas, filed a petition against Abdul Wahid Khan, as respondent, to declare him as an insolvent on the following averments. The respondent in the petition was engaging in forward trading in Stock Exchange, through the petitioner as per the Stock Exchange Rules and in that regard he became liable to pay to the petitioner a sum of Rs. 1,00,578.85 Ps. as per the statement of accounts. The debt was not secured. Within three months immediately before the presentation of the petition, the respondent committed acts of insolvency by departing and absenting himself from his dwelling house, which is his usual place of business and further he secluded himself so as to defeat and delay his creditors. The petitioner on several occasions called at the residence of the respondent in the petition, in order to obtain payments; he was; however not available and though several registered letters and notices were sent, the respondent evaded to receive the same and they were returned with an endorsement that the addressee was not available at the delivery time. Therefore, the petitioner has filed the petition praying that the respondent be adjudged as insolvent under clauses (ii) and (iii) of Section 6(d) of the Provincial Insolvency Act.

(3.) The respondent could not be served through Court or by registered post. Ultimately he was served by substituted service by publishing the notice in the daily newspaper 'Deccan Herald' dated 14th July, 1969 and he appeared through lawyer on 12.8.1969. The Court after hearing dismissed the petition by its order dated 14.1.1972. The petitioner came up in appeal before this Court in MFA No.319 of 1972. In that appeal this Court on 29.1.1974 set aside the order of the trial Court and remanded the matter for fresh disposal after giving opportunity to both parties to adduce additional evidence, if any, on their behalf. After the remand the Counsel for the respondent was served and the Court fixed the case for hearing on 25.10.1976. On that date the petitioner closed his case by examining himself and the case was posted for the respondent's evidence on 22.11.1976. The respondent was absent. Again it was posted on 6.12.1976 on which date also the respondent and his counsel remained absent. Accordingly, the court closed the case of the respondent and fixed the case for arguments on 11.1.1977. On 11.1.1977 petitioner's Counsel prayed for time for argument and it was adjourned to 20.1.1977 and again it was adjourned to 2.2.1977 on which date the Respondent's Counsel prayed for time. It was again adjourned to 8.2.1977 and then to 19.2.1977. On 19.2.1977 again the respondent's Counsel prayed for time. Thereafter the arguments were once heard and since the Presiding Officer was transfered the case was again adjourned from time to time and ultimately the arguments were heard on 15.11.1978 and the matter was posted for orders on 20.11.1978 and from that date to 22.11.1978 on which date the orders were passed holding that the respondent was an insolvent. It is against that order that the present appeal is instituted by the original respondent in that petition.