VENKATLAL GOVINDLAL Vs. JUGGILAL KAMALAPAT HOSIERY FACTORY

JUDGEMENT

(1.) THIS is an, appeal by an Insolvent who was adjudicated as such by Mr. Justice Desai, and the few facts which are to be appreciated in order to understand the contention put forward by Mr. Bhabha are these. An 'ex parte' decree was passed against, the appellant in favour of the respondents on 12-7-1952. On 10-3-1954, the respondents took out an insolvency notice which was founded on this judgment debt. On 5-5-1954, the appellant took out a notice of motion to set aside the insolvency notice. That motion was dismissed by the Insolvency Judge on 8-12-1954. The appellant preferred an appeal to this Court on 10-12-1954, and that appeal was dismissed on 18-3-1955. On 28-3-1955, the respondents presented a petition for adjudicating the appellant insolvent and this petition was founded on the act of insolvency committed by the appellant in not complying with the insolvency notice. On this petition the learned Judge made the order of adjudication on 19-7-1955, and that is the order which is being challenged in appeal, and the very short point that arises is whether the petition is presented within three months from the commission of the act of insolvency. In order that the petition should be well founded it must be presented within three months from an act of insolvency, and it is not disputed that If the petition is not so presented, then it is bad and the order of adjudication made thereon cannot stand.

(2.) NOW, in the insolvency notice which was Issued by the Insolvency Registrar, time was fixed within which the appellant had to comply with the notice and that time was 35 days from the date of the notice. When the appellant took out a notice of motion on 5-5-1954, to set aside the insolvency notice, that time became automatically extended by reason of the Rules framed by us under the Insolvency Act, and the Question is to what point of time the time was extended by which the appellant could comply with the insolvency notice. The result of the taking out of a notice of motion to set aside the insolvency notice is dealt with in Rule 52-C and the rule is to the following effect :

(3.) NOW, what was urged by the respondents --and the argument found favour with the learned judge--was that the notice of motion was not heard and determined till 18-3-1955, when the Court of appeal dismissed the appeal of the appellant. On the other hand, the contention of the appellant is that the notice of motion was heard and finally determined on 8-12-1954, when the Insolvency Judge dismissed the motion. Now, if the appellant is right, then the petition which was presented on 28-3-1955, is clearly beyond three months. If, on the other hand, the view of the learned Judge is correct and the material date is 18-3-1955, then the petition is within time.