B C MUNIRATHINAM NAIDU Vs. MEENA FINANCIERS MADRAS

JUDGEMENT

(1.) THIS is an appeal by the respondent in I. P. No. 79 of 1972, who was adjudicated as an insolvent, on a petition filed by one of his creditors. The appellant was adjudicated as insolvent, because it was found that his property had been attached and had remained under attachment for more than 21 days in execution of a decree of this Court for the payment of the money. Several other grounds were urged by the creditor for adjudicating him as an insolvent and were found in his favour, and, therefore, they do not survive for consideration now. The ground on which the appellant was adjudicated as insolvent is also not impugned in this appeal. The argument of the learned counsel for the appellant was confined to the question of jurisdiction. It is contended by the learned counsel for the appellant that the appellant has not ordinarily resided or had a dwelling house or carried on business either in person or through an agent within one year before the date of presentation of the insolvency petition within the limits of the ordinary original civil jurisdiction of this Court and that, therefore, the order passed by the learned Judge of this court on the original side is without jurisdiction. The petition for adjudicating the appellant as insolvent was filed under Sections 9 (d) (ii) and (iii ). 9 (e) and 9 (g)of the Presidency Towns Insolvency Act. In that petition it is alleged that the appellant "is residing at No. 166-A, Poonamallee High Road, Madras", and was residing within the jurisdiction of this Court within a year before the date of presentation of this petition. It is also alleged that he

(2.) THE appellant has examined the karnam of Muthirampedu as R. W. 2 to prove that he has been residing in Muthirampedu for about 7 or 8 years. The president of the Panchayat Board at Muthirampedu has been examined as R. W. 3 to corroborate the evidence of R. W. 2 on this aspect. Deposing as R. W. 1. the appellant has also endeavoured to make out that he has been residing only in Muthirampedu, and not in the City of Madras, R. W. 4. the brother-in-law of the appellant, has gone into the witness, box to swear that the appellant is not doing any business at No. 162, Shenov Nagar and that it is he (R. W. 4) who has been paying the rent for the premises in Shenoy Nagar. The phone in that premises is in the name of the wife of the appellant. R. W. 4 has not filed any document to prove that he has been paying the telephone charges or the rent for the premises. The premises were admittedly in the occupation of the appellant prior to the alleged occupation by R. W. 4. The receipts for the rent which R. W. 4 claims to have paid to the landlady have not been filed. There is nothing to show that R W. 4 attorned to the landlady and that the landlady agreed to treat him as a tenant. R. W. 4 is an interested witness. No reliance can be placed on his mere word that he is a tenant of the premises bearing door No. 162, Shenoy Nagar. The best evidence, viz. , the receipts for the payment of rent by R. W. 4 to the landlady not having been filed, the evidence of R. W. 1 and R. W. 4 have to be rejected.

(3.) WE agree with the conclusion of the learned trial Judge that the appellant has a dwelling house at No. 162, Shenoy Nagar and used to stay there whenever he came to the City. The fact that he has a permanent residence at Muthirampedu is not inconsistent with his having another residence at Madras. The endeavour of R. W. 1 to get over his admission in the first counter statement filed by him that he was having a temporary residence at Shenoy Nagar, Madras, to facilitate his temporary stays at Madras, by trotting out the explanation that it is not correct, (which is not an explanation at all) betrays his total lack of veracity and disregard for consistency. He would like us to believe that it was his counsel who made such an averment in the counter-statement despite the instructions given to him to state that whenever he visited Madras he used to stay in the house of his brother-in-law. We are not prepared to believe that his counsel drafted the counter-statement containing any averment that was not based on the instructions of the appellant.