(1.) HEARD. The first respondent herein has been adjudicated as an insolvent on application by the petitioner/appellant. It seems, however, that when the Official Assignee proceeded to take possession of the properties of the insolvent in accordance with the provisions under the Presidency Towns Insolvency Act 1909, (hereinafter referred to as the Act) one S. Arokianathan, Managing Partner of Jas Washing Machines Marketing Company moved an application, alleging inter alia , that he had been carrying on business as a sole distributor in Madras City for the sale of Washotex Washing Machines. During the course of business he sold 10 numbers of Washotex Washing Machines for the value of Rs. 61,760/- to the first respondent on 10.12.1990. It is stated further that the cheque issued by the first respondent towards payment of the price of the 10 numbers of Washotex Washing Machines was dishonoured. The first respondent issued another cheque on 5.2.1991 for a sum of Rs. 30,880/- towards the cost of five numbers of Washotex Washing Machines only. This cheque, however, was honoured and encashed. These transactions were completed before the first respondent was adjudicated as an insolvent. He has stated further that five numbers of Washotex Washing Machines thus in possession of the insolvent, besides five which were sold on payment by cheque dated 5.2.1991 for a sum of Rs. 30,880/-, belonged to Jas Washing Machines Marketing Company, and accordingly, a prayer was made for an order to deliver five numbers of Washing Machines to the said Company. After hearing the Managing Partner of Jas Washing Machines Marketing Company namely, S. Arokianathan and the Official Assignee, learned Company single Judge of this Court on 8.7.1991 ordered as follows:? ?I have heard the applicant and the Official Assignee. It is stated by the Official Assignee that the insolvent has told him that he has purchased 10 washing machines from the applicant herein and that he has paid money byway of cheque only for the five machines, and the balance payment has to be made for the five machines. Now the I.P. is pending. The present application has been filed by the applicant herein with a request made in the petition. Under these circumstances, there cannot be any dispute over the ownership of the five washing machines. Accordingly, the Official Assignee is directed to deliver 5 numbers of washing machines to the applicant by taking proper acknowledgment from him and after verifying the records. It is stated by the Official Assignee that on 25.6.1991 I have directed the Official Assignee to sell the stock-in-trade, furniture?s and goods found and take possession from the insolvent's premises at Madras including godown at four branches at Coimbatore, Tiruvannamalai, Tiruchy and Walajapet. The order dated 25.6.1991 is modified only to the above effect and in other respects the order will stand.? After the above order, however, the creditor/appellant filed a petition seeking to review the above order and for stay of delivery of five numbers of Washing Machines to Jas Washing Machines Marketing Company on the plea inter alia that once the first respondent has been adjudicated as an insolvent, it is mandatory on the part of the creditors to make their respective claims before the fifth respondent, the Official Assignee and that the application for the release of five numbers of Washing Machines filed on behalf of Jas Washing Machines Marketing Company should be rejected because the said application was filed without impleading the petitioner/appellant-Bank (Secured Creditor) and the fourth respondent's application was based on the ground that he was an unpaid seller, that it was not sure whether the washing machines that are lying with the Official Assignee are ones supplied by the fourth respondent (Jas Washing Machines Marketing Company) and stating further that from the very face of the allegations of the fourth respondent herein, in Application No. 307 of 1991 there was a sale before the adjudication proceedings. Learned judge has however, ordered as follows:? ?I have made it very clear in my order dated 8.7.1991 that my order, dated 25.6.1991 was modified only to the extent mentioned in the order, dated 8.7.1991, and in the other respects the order will stand. These two applications are filed by the Canara Bank, Anna Nagar Branch, Madras, to set aside the order dated 8.7.1991 made in Application No. 307 of 1991 and for the stay of operation of the said order. I have heard Mr. L. Jayakumar who appears for the applicant/Bank. The claim of the Bank that they are secured creditors is yet to be established. I dismiss these two applications on the question of locus standi Before taking delivery of Washing Machines, the party in person S. Arokianathan will produce the sale papers and other records before the Official Assignee to show that the goods have been sold by him to the insolvent.?
(2.) HAD we not ourselves noticed the undisputed facts in this case and caught by the infirmity in the impugned order, we would have accepted the contention on behalf of the appellant that the learned single judge is not correct in dismissing the two applications (one for setting aside the order dated 8.7.1991 and the other for stay of operation of the said order on the ground that the claim of the Bank that they are secured creditors which is yet to be established). Since however, in the instant case in the application to recall the order ( sic ) the fourth respondent herein had brought of the notice of the Court that there had been a transaction involving 10 numbers of washing machines; but the price of five of them had been paid to him by the insolvent. It is the duty of the Official Assignee to take possession of the properties of the insolvent and to proceed under S. 61 of the Act. The property of the insolvent would pass from Official Assignee to Assignee and would vest in the Official Assignee for the time being during his continuance in office, without any transfer whatever. ?Property?, however, has been defined under S. 2(e) of the Act to include any property over which or the profits of which any person has a disposing power which he may exercise for his own benefit and ?transfer of property? has been defined in S. 2(i) of the Act to include a transfer of any interest therein and any charge created thereon. S. 52 of the Act provides for description of insolvent's property divisible amongst creditors which runs as follows:? ?(1) The property of the insolvent divisible amongst his creditors, and in this Act referred to as the property of the insolvent, shall not comprise the following particulars, namely:?