SIVAN PILLAY Vs. RAMESH CHANDRA

JUDGEMENT

(1.) The petitioner in I.A. 5922 of 1993 in I.P. 2 of 1989 of the Principal Sub Court, North Paravur is the revision petitioner. This Civil Revision Petition is filed against an order passed by the learned Sub Judge dismissing an application filed by the petitioner under S.42 of the Insolvency Act to discharge him from the liabilities.

(2.) The short facts necessary for the disposal of the Civil Revision Petition are as follows: Proceedings under the Insolvency Act was initiated against the revision petitioner. On 18th June 1993 an order of adjudication was passed declaring the revision petitioner as an insolvent. Thereafter the petitioner riled I.A. 5922 of 1993 to discharge him as provided under S.42 of the Insolvency Act. In the petition the petitioner had narrated the debts due to the respondents. It was further averred that after the order of adjudica-lion, the petitioner has not acquired any property and not doing any business or getting any income. Hence he prayed that he may be discharged of the liability to pay the debts described in the application. The prayer was opposed by the contesting respondents. The first respondent has filed an objection contending that the petition is not maintainable. It was specifically contended that the revision petitioner has previously made an arrangement in collusion with certain creditors who had been unduly preferred. It was further contended that the revision petitioner has omitted to keep a proper account of his financial affairs and he failed to account satisfactorily for any loss of assets. It was also contended that the petitioner had transferred his immovable properties to certain persons so as to defeat the creditors. The 4th respondent, the State Bank of Travancore, had filed an objection contending that the petition is not maintainable. It was contended that the revision petitioner was running a hotel and restaurant by name "Sivasakthi" at Alwaye and he was getting fabulous income from that business. It was also contended that the petitioner has sold the business to a close relative for an amount of Rupees Two Lakhs; but still the petitioner is conducting the business. The petitioner gave evidence as P.W. 1. After considering the pleadings and evidence, the learned Sub Judge found that the petitioner is not entitled to get an absolute order of discharge and dismissed that application. That order is under challenge in this Civil Revision Petition.

(3.) The learned Counsel appearing for the revision, petitioner has argued that the view taken by the learned Sub Judge is perverse and illegal. It is argued that the reasons stated by the Court below for dismissing the application was that the petitioner has transferred some of his assets with the intention to defeat or delay the realisation of the amount due to the creditors. The learned Counsel for the revision petitioner relied on the decisions reported in Subramonia Iyer v. Official Receiver 1958 KLT 1195 and Venkiteswaran v. Venkitakrishnan ILR 1981 (1) Kerala 558 and argued that there is no annulment of the documents executed by the adjudged insolvent and in the absence of a finding to that effect, the view taken by the Sub Judge is illegal.