MATHAI VARKEY Vs. ACHUTHAN DAMODARAN

JUDGEMENT

(1.) THIS revision petition is filed by two debtors who are ad -judicated insolvents by the order of the Sub -Court, Kottayam, which was confirmed by the District Court on appeal. The petitioners are brothers and are admittedly indebted to the respondents. The petition for adjudication was brought by the 1st respondent and later the other respondents got themselves impleaded in the petition as counter -petitioners 3 to 3. The petition was grounded on Sub -clauses (ii) and (iii) of Clause (d) of Section 6 of the Insolvency Act - - that with intent to defeat or delay their creditors the petitioners had departed from their dwelling houses or usual place of business or otherwise absented themselves and that they had secluded themselves so as to deprive their creditors of the means of communicating with them. The petitioners resisted the insolvency petition contending that it was not maintainable, that they are possessed of extensive properties and considerable assets more than sufficient to discharge their debts, that they have their residence and place of business near the court house at Vaikom, that they have not absented themselves from their dwelling houses or place of business and that they have not caused any inconvenience to their creditors to communicate with them. They further contended that the petition lacks good faith and hence has been inspired out of spite to harass and ruin them if possible. The courts below held on the evidence let in the case that with intent to defeat or delay the creditors the petitioners have departed from their dwelling houses and usual place of business and were absenting themselves otherwise. It was also found that the petitioners are unable to pay their debts and are therefore liable to be adjudicated insolvents. This revision petition is filed in these circumstances.

(2.) THIS revision petition is filed Under Section 75 of the Insolvency Act and the power of this Court, though wider in scope than the power under Section 115, Civil Procedure Code, is not unlimited. Interference is possible only if this Court is satisfied that the order made in appeal by the District Court is not according to law. The expression 'according to law' mentioned in the first proviso to Section 75(1) is similar in content to that given to same expression in Section 25 of the Provincial Small Cause Courts Act. The scope of the latter expression was explained by Beaumont. C. J., in Bell and Co. Ltd. v. Waman Hemraj, (AIR 1938 Bom 223) as follows: - -