VENKATACHALAM CHETTY Vs. K POOVA GOUNDER

JUDGEMENT

(1.) THIS CMSA is directed against the order dated 30. 3. 92 passed by the District Court, Dharmapuri at Krishnagiri in CMA. No. 37 of 1989.

(2.) THE appellant herein got a decree against the first respondent in O. S. No. 32 of 1978, O. S. 361of 1978 and O. S. No. 292 of 1982 and also filed execution petition before the District Munsif Court , Karur. THE respondents 2 to 4 are the other creditors of the first respondent and they were also making arrangement to take necessary action against the first respondent. Only at that time the first respondent filed an application in I. P. No. 2 of 1989 before the sub-court, Dharmapuri stating that the value of his property is lesser than his debts and he would not be able to satisfy the debts and therefore prayed for an adjudication that he must be adjudicated as an insolvent.

(3.) TO support his contention that appellant relied upon the decision reported in Gajanand v. I. T. Officer, AIR 1964 All. 322 wherein it has been said: " a substantial change was made in the law by the enactment of Provincial Insolvency Act of 1920, which for the first time made it a condition precedent, for a debtor to entitle him to present an application for being declared an insolvent, to prove, prima facie, the he is unable to pay his debts. It is only when the conditions prescribed under Section 10 of the act have been fulfilled that court has no option but to admit him to the protection of the insolvency court. This condition was absent in the Act of 1907 and, therefore, it was not then incumbent on the debtor, when presenting the petition, either to allege his inability to pay his debts, or to prove the same to entitle him to an order from the court. " It is further observed thus: "the question which required determination in this appeal is whether on the basis of the material on record, the court could possible come to a finding that the appellant was unable to pay his debts. When the appellant had deliberately omitted to mentioned certain valuable items of his assets in his petition, and, when he had deliberately refused to assist the court in making an appraisal, by not disclosing the details of the Textile mills wherein he owned his shares, or the value of the pearl necklace, it was impossible to come to a definite finding, even prima facie, that the appellant was unable to pay his debts. Unless the assets of the appellant, along with his liabilities, were fairly presented before the Court, for which a duty is cast on the appellant under law, it cannot be held that the Court was in a position to come to a finding on the question about inability of the appellant to pay his debts. In this view of the matter we are of the opinion that the finding of the learned Judge that the appellant was not entitled to protection of Court was correct and must be upheld on the ground that he failed to discharge the onus cast on him under the law to prove that he was unable to pay his debts. " It is argued on behalf of the appellant that the first respondent has not satisfied any of the conditions set forth in the above said decision and that therefore the appeal has got to be allowed.