BONTHALA BALIAH Vs. SANTIVEERAPPA SIVARUDRAPPA SRIGARI

JUDGEMENT

(1.) These two connected appeals arise out of orders passed by the District Judge of Cuddappah in insolvency. The insolvent filed I. A. No. 45 of 1943 under Sections 35 and 38, Provincial Insolvency Act. It was alleged in the petition that the insolvent proposed to satisfy the creditors at the rate of a rupee for a rupee on the amounts of the debts due to them and therefore, requested the Court to approve of his proposal and annul the adjudication. In the schedule annexed to the application the total amount of the debts was shown at Rs. 15016-0-6. The progress of this application is disclosed in the B diary. After notices were served on all the creditors, the application was posted for enquiry to 15th December 1943. Some of the creditors, respondents 2, 4, 5, 14 and 15 filed a counter stating that they would agree only if the amounts payable under the promissory notes in their favour and interest upto the date of payment were paid. The insolvent undertook to pay like that. The learned District Judge then adjourned the application to 17th January 1944 for payment or deposit. The insolvent did not take advantage of this opportunity, and did not pay the amount within the time given. Instead, he filed applications under Section 50(2) against some creditors for expunging or reducing the debt due to them. The amount due to respondents 1, 4 and 14, who did not agree to the proposal, was more than one-fourth in value of the total amount of the debt due by the insolvent. The learned District Judge, therefore, dismissed the application filed under Sections 35 and 38, Provincial Insolvency Act, as also the applications filed under Section 50(2) on the ground that they were not maintainable in view of his dismissal of the main application. The insolvent has preferred C. M. A. No. 672 of 1946 against the order of the learned District Judge dismissing the application under Sections 35 and 38, Provincial Insolvency Act, and C. M. A. No. 673 of 1946 against the order of the learned District Judge dismissing the application under Section 50(2) of the Act,

(2.) Mr. Umamaheswaram, the learned counsel for the appellant contended that the learned District Judge approved of the composition and was, therefore, wrong in dismissing the application filed under Sections 35 and 38 of the Act. In regard to the application under Section 50(2) of the Act he argued that the existence of an approved composition was not a condition precedent for the maintainability of an application under that section. The first argument ignores the obvious facts in the case. From the aforesaid narration of the facts it is clear that the learned District Judge did not purport at any point of time to approve of the scheme put before him. Indeed, as the creditors opposed it, he gave a further opportunity to the insolvent by adjourning the' matter to enable the insolvent to comply wife the requirements of Section 38, which he did not avail himself. In the circumstances, the learned Judge was right in dismissing the application on the ground that a majority in number and three-fourths in value of all the creditors whose debts were proved did not resolve to accept the proposal.

(3.) We cannot also agree with the learned counsel for the appellant in regard to his second contention. The material portion of Section 50 of the Act reads :