INTERNATIONAL METAL INDUSTRIES Vs. DURGA M JOSHI

JUDGEMENT

(1.) By this report dated 11th April 1986, the Official Assignee seeks an order that in view of the order of adjudication dated 18th of November 1983, passed against the judgment-debtor (hereinafter referred to as the insolvent), the petitioning creditor Smt. Durga Mohan Joshi be directed to pay to the Official Assignee the aggregate sum of Rs. 1,35,000/- which was deposited by the insolvent with the Prothonotary & Senior Master, in Summary Suit No. 729 of 1982 (Smt. Durga Mohan Joshi v. M/s. International Metal Industries and others), and which amount the said Durga Mohan Joshi the judgment creditor withdrew through her former Advocates M/s. Nalin Shah & Co.. on the 17th of December 1983. The application is opposed by the said Durga Mohan Joshi, the petitioning creditor.

(2.) The facts that lead to this report are that the petitioning-creditor filed a suit in this Court, being Suit No. 729 of 1982 against the insolvent. A decree was passed on the 26th of July 1982 against the insolvent in a sum of Rs. 4 lacs and odd. The said decree was made payable by instalments. The insolvent paid some of the instalments, aggregating to a sum of Rs. 1,61,000-. However, thereafter the insolvent committed defaults. The petitioning-creditor herein applied for an attachment of the insolvent's property. An attachment was levied on the 4th of August 1983. Under this attachment, two properties came to be attached. Thereupon, the insolvent took out a Chamber Summons being Chamber Summons Nos. 502 of 1983, inter alia, seeking a condonation of delay in the payment of instalments and seeking a stay of execution. On this Chamber Summons, a sum of Rs. 40,000/- was directed to be deposited and the execution came to be stayed. This Chamber Summons came up for hearing and disposal on the 9th of September 1983. On that date, it was found that the said Chamber Summons was defective. The insolvent hence withdrew the said Chamber Summons and presented another Chamber Summons being Chamber Summons No 535 of 1983. The amount of Rs. 40,000/- deposited under Chamber Summons No. 502 of 1983 was treated as the amount deposited in Chamber Summons No. 535 of 1983. Pending this Chamber Summons, the insolvent deposited further sums from time to time in Court The second Chamber Summons i.e., Chamber Summons No. 535 of 1983 came up for hearing on the 23rd September 1983. The same was, however, dismissed on that day Being aggrieved by the said order of dismissal, the insolvent filed an appeal being Appeal No. 787 of 1983 which came up for admission on the 21st of October 1983 when the same was dismissed. The stay, however, was continued till the 8th November 1983. On the 1st of November 1983, the insolvent took out yet another Chamber Summons, being Chamber Summons No. 649 of 1983 but the same proved abortive. However, it was agreed between the judgment-creditor and the insolvent that the amounts deposited by the insolvent pending the two Chamber Summons, aggregating to Rs. 1,35,000/- should be allowed to be withdrawn by the judgment-creditor and minutes to this effect came to be filed in the said proceedings. On the basis of these minutes, the judgment-creditor withdrew the said amount It appears that alongside the proceedings, in view of the fact that the attachment continued over 21 days, the judgment-creditor filed a petition being Petition No 85 of 1983 for adjudicating the judgment-debtor an insolvent. This petition came to be made absolute on the 18th of November 1983. Being aggrieved thereby, the insolvent filed an appeal being Appeal No. 878 of 1983. The said appeal, however, came to be dismissed.

(3.) It is now the Official Assignee's case that since the judgment-debtor was adjudicated insolvent on the 18th of November 1983, the insolvency must now relate back to the date of the act of insolvency, and in view of this, it was incumbent on the judgment-creditor to pay over to him, the Official Assignee, the sum of Rs. 1,35,000/- withdrawn by the judgment-creditor on or about 17th December 1983 from the Court Office. He has hence filed this report seeking the said relief.