MOHAMED ZACKERIA FIRM Vs. V SRINIVAS AND CO

JUDGEMENT

(1.) THIS is an appeal against the order of Balakrishna Ayyar J. adjudicating the appellant, Mohamed Zackeria firm, by sole proprietor Mohamed Zackeria, insolvent under the" Presidency Towns Insolvency Act as he did not pay the debt of about rs. 3000 due to the first respondent, V. Srinivasan and Co. , on dealings, despite the attachment of his house in Madras remaining in force for 21 days. . The appellant had urged before Balakrishna Ayyar J. that he was worth nearly a lakh of rupees and that his debts did not amount to even one fourth of that amount and that it would be improper to adjudicate him Insolvent when he could easily pay off all his debts. He had represented that he had Rs. 80,000 worth of property in Vaniyambadi, in the shape of a house and tannery, and some movable property besides. Balakrishna Ayyar J. was not impressed by this argument. Not only the debt of Rs. 3,000 due to the first respondent, but also a small decree debt of Rs. 400, had remained unpaid though four years had. passed. The appellant also urged before Balakrishna Ayyar J. two other arguments. The first was that he could not be adjudicated insolvent in Madras as he and his firm were carrying on business only at Vaniyambadi. Hut in view of his admission that he was coming to Madras now and then in connection with his business and was purchasing and selling things here on those occasions arid sleeping in a house in madras, and that he stopped his business in Madras only on 15-7-1954 and had not sold even a single square foot of leather (his trade is in leather) since then, balakrishna Ayyar J. considered that he was doing business in Madras actively purchasing and selling things till 15th July 1954, and that under the ruling of a bench of this court in Gokaldoss Govardhandoss v. Parry and Co. ILR 48 Mad 795: (AIR 1925 Mad 1249) (A), his firm should be deemed to be "carrying on business" within the meaning of Section 11 (d) of the Presidency Towns insolvency Act so long as its business debts remained undischarged. In the present case the debt due to the first respondent was a business debt contracted before 15th July 1954, at Madras, and therefore the learned Judge held that the appellant could be adjudicated insolvent here under the Presidency Towns insolvency Act.

(2.) THE nest contention urged before Balakrishna Ayyar J. by the appellant was that under Clause (e) of Section 9 of the Presidency Towns Insolvency Act, it is sufficient cause for adjudicating a person insolvent if his property remains under attachment for a period of twenty one days, whereas under Section 6 (e) of the provincial Insolvency Act the attached property of the debtor has to be sold in execution of a. decree for the payment of money before the transaction can be considered to be an act of Insolvency, and that this would amount to discrimination, and a denial of equality before the law and the benefit of equal laws to persons residing in or carrying on business within the presidency towns. Balakrishna Ayyar J. rejected this argument by observing:

(3.) WE have perused the records, and heard Mr. Jayachandra Naidu, the learned counsel for the appellant. He adduced the same three contentions before us. Firstly, he contended that the appellant firm never carried on any business at madras even before 15th July 1954, in which case alone the ruling in ILR 48 Mad 795: (AIR 1925 Mad 1249) (A) would apply. According to him, the sole proprietor of the appellant firm, Mohamed Zackeria, had loosely stated that he was visiting madras now and then and purchasing goods here, and selling things here till 15th july 1954, whereas really he ought to have said that he was purchasing avaram leaves here and consigning his leather to the first respondent and other commission agents for being sent to London to be sold there. But we cannot allow the words in the evidence of Mohamed Zackeria to be extended thus when the man himself had stated clearly and unambiguously that he was coming to Madras now and then in connection with his business and was purchasing and selling goods here. There is no ambiguity to be cleared in those statements. So we cannot allow those statements to be extended and made to bear a different meaning, by mere arguments of his counsel. Nor do we see any reason to remand the matter to the learned Judge again as requested by jayachandra Naidu, for allowing Mohamed Zackeria to give the extended and revised Version. A remand is not Intended for purposes of adding thus to unambiguous evidence and changing the meaning. So we are satisfied that Balakrishna Ayyar J. was right in holding that the appellant was coming to Madras now and then and carrying on business here, and that, though he closed down his business here on 15th July 1954, he must be deemed to be carrying on his business here so long as the liabilities he incurred in the course of the business remain undischarged. Mr. Jayachandra Naidu relied on the ruling of Panckridge J. In re Benode Behari Saha, 46 Cal WN 664 (B ). That will not help him. All that was held there was that if a person carried on a retail business in piecegoods in the mofussil, that is, outside Calcutta, but went to Calcutta for the purpose of buying his stock, and stayed in his broker's house for four or five days at a time whenever he went to purchase the stock, paid the vendors of the stock at Calcutta, he could not be deemed to be carrying on business at Calcutta. The facts there will not apply to this case. Mr. Jayachandra Naidu himself conceded that if that retail merchant had sold his retail goods at Calcutta, in addition to purchasing his stock there, he would be carrying on business in Calcutta. Here, Mohamed Zackeria, the sole partner of the firm admitted in his evidence, that he was purchasing goods at Madras, and selling goods at Madras, in the course of his business visits to Madras. So he was carrying on business at Madras, and could be adjudicated here under the Presidency Towns insolvency Act, though doubtless, he could also be adjudicated at Vanlyambadi under the Provincial Insolvency Act, by the appropriate Court, for any act of insolvency committed there.