STRUCTEE MECH INDIA PARTNERSHIP FIRM Vs. BHARATKUMAR PAHLAJRA

JUDGEMENT

(1.) Respondents 1 to 5 in I. P. No. 72 of 1976, have preferred this appeal to canvass the correctness of I the order of adjudication passed against them in the said insolvency petition.

(2.) The first appellant is a registered partnership firm and appellants 2 to 5 are its partners. Respondents 1 to 3 herein filed a petition under S. 9 (d) (ii) and 9 (9) read with Ss. 10, 11 and 13 of the Presidency Towns Insolvency Act (III of 1909) (hereinafter referred to as the Act) for adjudicating the appellants and one Job Simon (the 6th respondent in the insolvency petition) as insolvents and for directing the estate of the insolvents to vest in the Official Assignee for purposes of administration for the benefit of the general body of creditors. As regards the act of insolvency under S. 9 (d) (ii), it was alleged in the petition that the appellants and the said Job Simon had made themselves unavailable for being contacted at the office or at the works. This contention was not accepted by the learned single Judge who disposed of the insolvency petition and hence we need not deal with that aspect of the matter in this judgment. As regards the other ground an order of adjudication was viz., under S. 9 (g) of the stated by respondents 1 to 3 that the appellants owed them a sum of Rs. 6,000/- in the aggregate and the said, sum besides being a liquidated amount was also payable immediately. But in spite of it, in response to the at tempts made by them through their representative Mr. Motiram to collect the outstanding amount, the first appellant had sent a letter on 21-6-1976 where in it was stated that the appellants were suspending payments for the present to all the creditors in view of the fact that they had suffered misfortunes. This ground was found to be a sustainable one by the learned single Judge and hence he allowed the petition and passed an order of adjudication against appellants 1 to 5. In so far as, Job Simon, the sixth respondent in the insolvency petition is concerned, it was held that he was not a partner of the firm but was only a manager and he cannot be deemed to have committed any act of insolvency. In that view of the matter, the petition was dismissed as against Job Simon. The appellants have preferred this appeal to assail the correctness of the order of adjudication passed against them.

(3.) Mr. G. Nandalal, learned counsel for the appellants, contended that the order of adjudication passed against the appellants cannot be legally sustained because the appellants cannot be deemed in law to have committed an act of insolvency falling within the ambit of S. 9 (g) of the Act. The principal contentions put forward by the learned counsel were as follows - (1) The letters Exs. P. 5 and P. .6 (Ex. P. 6. being a copy of Ex. P. 5) were not written by the 4th appellant of his own volition or free will but had been written by him at the behest of one Motiram who was acting as the agent of the Multani Bankers from whom the appellants had borrowed moneys for the firm. It had never been the intention of the 4th appellant or any of the other partners of the firm to suspend payments as envisaged under S. 9 (9) of the Act. (2) The amounts claimed to be due by respondents 1 to 3 on the date when Ex. P. 5 and P. 6 were written, had not fallen due and were not immediately payable and in such circumstances even if the letters manifested an intention to suspend payments, an act of insolvency cannot be deemed to have been committed. (3) The alleged suspension of payments referred to in Exs. P. 5 and P. 6 were not intended to stop payment to all the creditors of the appellants but only to one class of creditors, viz., the Multani Bankers and (4) In any event., the letters Exs. P. 5 and P. 6 had been written only by the fourth appellant in, his individual capacity and in the absence of proof to show that the letters had been written with the express consent of the other partners, viz., appeal-. lands, 2, 3 and 5 or under an implied. authority given by them, the consequences of suspension of payment cannot be visited on the other appellants in matters of insolvency.