MOHANAKRISHNAN Vs. GOPALASWAMI NAIDU AND ORS.

JUDGEMENT

(1.) THIS Civil Revision Petition is directed against the order of the learned District Judge, Tirunelveli, in C.M.A. No. 27 of 1965. The petitioner herein was adjudicated an insolvent on his own petition. At or about the time when the insolvency proceedings were initiated by the petitioner, he has executed a promissory note for Rs. 7,000 in favour of the 1st respondent as evidenced by Exhibit A -2, dated 24th May, 1960. The petitioner, however, was canvassing the correctness of the said debt and this is seen from the correspondence that passed between the petitioner and the 1st respondent prior to the petitioner filing his application for adjudication. In fact, the petitioner filed his petition for adjudication on 25th July, 1963 and disclosed therein five debts two of which are decree debts and three others are debts accruing under promissory notes in favour of other parties. The 1st respondent thereafter instituted a suit on the foot of Exhibit A -2 on 8th October, 1963. The petitioner, who was the defendant in that suit, filed his written statement and inter alia in paragraph 6 of the same the petitioner states. This defendant was unable to discharge the debts incurred by him and he has since filed an insolvency petition in I.P. No. 14 of 1963 on the file of this Court and the same is pending. As the plaintiff is not a creditor of this defendant, he has not been included as a respondent in the said insolvency petition.

(2.) ON 6th February, 1964, the petitioner was adjudicated an insolvent and on 29th February, 1964, the 1st respondent obtained a decree against the petitioner in the suit filed by him against the petitioner. After securing a decree as aforesaid, the 1st respondent filed an application under Section 35of the Provincial Insolvency Act, for annulling the adjudication order passed by Court in I.P. No. 14 of 1963, which was a petition filed by the petitioner on his own volition for his adjudication. This application for annulment was enquired into and the Courts below found that the debtor had not established that he was unable to pay his debts that his conduct was dishonest in that he had secreted the properties of his before applying for adjudication and that the petitioner ought to have paid the decree debts, which he disclosed in the insolvency petition filed by him. The petitioner aggrieved against the order of the Courts below has filed this revision petition canvassing the legality and propriety of the order of annulment of adjudication which is the cumulative result of the orders of the Court below.

(3.) BEFORE considering the facts arising in the instant case it would be convenient to notice the law which is applicable in such circumstances. The Provincial Insolvency Act is a self -contained enactment consolidating the law relating to insolvency and provides for the contingencies, circumstances and the data under which persons can resort to such insolvency Courts for relief. Such relief could be sought by the debtors on their own volition and by the creditors if they choose to do so. An act of insolvency which is defined in Section 6 of the Act includes a petition by a debtor to be adjudged an insolvent under the provisions of this Act. It therefore follows that if a person voluntarily wishes to be adjudicated an insolvent and petitions for that purpose under the Act that act by itself is an act of insolvency. Section 10 deals with the conditions on which a debtor may petition and in fact prescribes the limits of the jurisdiction of the Court to consider and adjudicate upon the petitions by debtors who come to Court voluntarily for being adjudicated as insolvents. Section 10 provided that a debtor shall not be entitled to present an insolvency petition unless he is unable to pay his debts and his debts amount to five hundred rupees.. We are not here concerned with the other provisions in Section 10. Section 13 which prescribes the contents of a petition for adjudication provides as follows: 13 (1) Every insolvency petition presented by a debtor shall contain the following particulars namely....(d) the amount and particulars of all pecuniary claims against him....