SHIVKUMAR BACHU SHARMA Vs. BAI KHATIZABAI

JUDGEMENT

(1.) THIS appeal raises an interesting question of some importance and nicely relating to the construction of Section 9 (A) of the Presidency Towns Insolvency Act. The few facts necessary for the disposal of this appeal are these. In a suit for ejectment filed against the appellant by the respondents a consent decree was obtained in the Court of Small Causes at Bombay and by that decree the appellant agreed to pay a sum of Rs. 8,800/-, another sum of Rs. 930/- for costs of the suit and a further sum of Rs. 325/- for additional costs. The decree was passed on 16th December, 1953. Two sums of Rs. 1000/- each were paid by the appellant to the respondents on 8th February 1953 and 30th April, 1953 respectively. No payment having been made thereafter by the appellant the respondents applied to the Court for issuance of an Insolvency Notice and the Insolvency Notice was issued by the Court on 21-10-1956 and was served on the appellant on 9th November 1956. On 8th January, 1957 the appellant took out the notice of motion out of which arises this appeal and the notice of motion was for setting aside the insolvency notice. On 8th March 1957 a further ground was allowed to be added to the notice of motion. Various contentions appear to have been raised before the learned Judge. The learned Judge has dismissed the notice of motion. It is not clear on what ground the notice of motion was dismissed because in this case we do not have the benefit of any judgment by the learned Judge. We may immediately observe that the point which has been really pressed before us in this appeal and which has impressed us does not appear to have been urged before the learned Judge.

(2.) A number of contentions have been urged before us by Mr. K. K. Desai, learned Counsel appearing for the appellant. It is not necessary for us to examine all of them in view of the fact that on a construction of Section 9-A of the Presidency Towns Insolvency Act, we are in favour of the appellant. The contention arises in this way. The consent decree is entirely silent on the question of payment of any interest on the decretal amount. In the insolvency notice taken out by the respondents, they no doubt gave credit for the two sums of Rs. 1000/- each paid to them but they added Rs. 350/- as interest on the amount that was due to them under the consent decree, and what is more they also claimed future interest. The principal contention of Mr. Desai before us has been that by adding this amount of Rs. 850/- as interest and claiming further interest, there was such non-compliance with the requirements of the provisions relating to an Insolvency Notice that the insolvency notice has become wholly invalid.

(3.) NOW, Sub-section (1) of Section 9-A requires, and it is a peremptory requirement, that the insolvency notice shall be in the prescribed form and the form requires that the amount due under the decree must be specified in the notice. Therefore, if the amount is not correctly specified the notice would be bad and that has been the view taken by this Court in numerous cases. But the first part of Sub-section (2) lays down as follows :