DEVIDAS NARAYAN KANGO Vs. BRIJLAL LAKDU BHAVSAR

JUDGEMENT

(1.) THE order of the Insolvency Court on Miscellaneous Application No. 114 of 1966 dated April 10, 1968, and the appellate order of the Extra Assistant Judge, Jalgaon, dated August 29, 1970, disclose pathetic ignorance of both the Courts about the objects and purposes of the law of insolvency and particularly the provisions therein in connection with discharge of insolvents and realisation and collection of assets of an insolvent by appointment of a receiver.

(2.) ONE Brijlal Bhavsar and his son Bhagwand Sudhakar carried on business as members of a joint and undivided Hindu family. On February 12, 1964, these three persons applied for an order of their own adjudication as insolvents on the ground that they were unable to pay and discharge their debts having suffered heavy losses in business. One of the debts mentioned in the insolvency petition was of Rs. 1,200/- due to the creditor Devidas Narayan Kango. An order of adjudication was made on January 7, 1965. The order provided that the debtors should apply for final discharge within six months from the date of the order. By Miscellaneous Application No. 114 of 1966 instituted on June 29, 1965, the three insolvents applied for discharged. In the application particulars of the debts due and inability to pay debts was admitted. It was further alleged that the insolvents were not in possession of any property of any kind for discharging their liability to pay debts. At the hearing of the application, affidavits were tendered on behalf of the creditors Devidas Narayan Kango and Somnath Rango Choudhari with intent to oppose an order of absolute discharge. The Insolvency Court held that the allegation of the insolvents that they did not own any property was incorrect and that the insolvents had continued to trade in Agarbatti continuously even after the date of the adjudication order. The Insolvency Court refused discharge by the order dated May 4, 1968. By the appellate order dated August 29, 1970, made in Civil Appeal No. 336 of 1968, the Extra Assistant Judge observed that proper inquiry was not held in respect of the debt claimed by creditor Devidas Kango. He observed that the contention of the insolvents was that by reason of the bar of limitation and otherwise the debt claimed by Devidas Kango was in law not in existence. He, therefore, observed : "in my opinion, therefore, it will be necessary to investigate this point in details. The appeal preferred by the insolvents, therefore, deserves to be allowed. " In consequence of the above observation, the learned Judge directed the Insolvency Court to hold a fresh inquiry in the matter of the debt claimed by Devidas Kango and then consider the application for discharge.

(3.) IN the matter of the above application for discharge, the creditors Somnath Choudhari and Devidas Kango filed an application Ex. 17 on September 25, 1967, for appointment of a receiver of the estate of the insolvents. They annexed to their application a schedule of what according to them were the properties of and was the estate of the insolvents. By their affidavit in reply Ex. 20, the insolvents contended that the properties mentioned in the schedule were not of their ownership and receiver, if any appointed would not be entitled to take possession of these properties. Their case was that these properties belonged to Annapurnabai, the wife of insolvent Brijlal Bhavsar. The contentions made by the creditors and the insolvents as above were not inquired into the adjudicated upon. Creditors Devidas Kango filed in second application Ex. 43 on February, 18, 1968, for appointment of a receiver. He supported that application by an affidavit giving particulars. These applications for appointment of a receiver were disposed of by the Insolvency Court by the same order by which it disposed of the application for discharge. The Insolvency Court having held that the debtors were carrying on business continued to belong to and was of the ownership of the debtors, appointed receiver and directed that "the property be attached and the creditors be accordingly paid. " By the appellate order dated August 29, 1970, this order has been reversed mainly on the ground that a proper inquiry had not been held on the question of the properties mentioned in the applications for appointment of Receiver being of the ownership of the debtors. The learned Extra Assistant Judge directed an inquiry to be held for investigation into the above question and set aside the order appointing receiver and attaching properties. These questions were disposed of by the single appellate order dated August 29, 1970, but have not been separately challenged in the present two appeals file by creditor Devidas Kango.