GOPALAKRISHNAN IYER Vs. PADMANABHAN

JUDGEMENT

(1.) The 2nd counter petitioner in I.P. No. 2 of 1965 on the file of the Subordinate Judge's Court, Trivandrum, is the revision-petitioner. The petitioner had filed I.P. No. 6 of 1961, and he was adjudicated insolvent, But that adjudication was annulled on 6-3-1964 for failure on his part to apply for discharge. So, I.P. No. 2 of 1965 was filed by him and he has again been adjudicated insolvent. The 2nd counter petitioner objected and the main points raised by him are:

(2.) On the first point learned counsel would argue that the petitioner is not entitled to present the second petition without the leave of the court by which the order adjudication was annulled; in other words, his point is that the sanction of the court G which annulled the first proceedings, should accompany the second application. The wording of S.10(2) of the Insolvency Act which pertains to the matter is "shall not be entitled an insolvency petition". The dictionary meaning of "present", is to bring formally under notice 01 submit or give (thing to person) as present etc. In the present instance, from the office note on I. P. 2 of 1965 it is seen that the petition was filed as Insolvency Petition No. 2 of 1965 on 31-5-1965. But the Judge ordered notice on the petition only on 1-6-1965. The word "file" according to Law Lexicon means, to deposit with the proper custodian for keeping; to place in the official custody of the clerk; to put upon the files or among the records of a court. 'Filing' and 'presentation' thus connote two different stages in the proceeding. The petition was filed as already stated, on 31-5-1965 i.e., it was put upon the file or among the records of the court. But presentation comes only on 1-6-1965 when the petition was placed before the presiding officer for his orders and on that date the sanction Ex. P1 had already been passed. I see, therefore, no substance in the contention that the requirement of S.10(2) of the Insolvency Act has not been complied with.

(3.) The next contention relates to part II of S.10(2) of the Act. The argument is that the court has granted leave without hearing the respondent, and without even issuing notice to him.