DEBI CHARAN BASU Vs. SUDHINDRA NATH DUTTA

JUDGEMENT

(1.) This is an application under Section 115 of the Civil P. C. and it is directed against Order No. 47 dated Jan. 16, 1976 passed by the Additional District Judge, Second Court, Alipore in Insolvency Case No. 17 of 1971 dismissing the petitioner's application under Section 35 of the Provincial Insolvency Act, 1920.

(2.) The salient facts of the case is that the petitioner came to be acquainted with the opposite party who was working as & finance broker and the opposite party introduced to the petitioner a firm known as Pioneer Stereotype Company as being in temporary need of some loans. The opposite party recommended highly the said firm as absolutely solvent and trustworthy. On such representation of the apposite party the petitioner and some of his relatives lent and advanced several sums of money to the said firm sometime in 1965-66 against several hundies executed by the said firm in favour of the petitioner and his relatives. Sometime thereafter in 1966 the opposite party repeatedly represented to the petitioner as well as to the other creditors that the firm had been involved in great financial difficulties and it might close down any day and advised the petitioner and other creditors to file suit for realisation of the sums advanced against Hundies to the said firm immediately otherwise it would not be possible to get the said sums recovered. The opposite party also repeatedly stated to the petitioner and other creditors that he was morally bound to them for the moneys advanced by them and as such he requested the petitioner and other creditors for filing suits against the said firm. The opposite party also entreated the petitioner and others to entrust him with the task of filing suit by endorsing the hundies executed by the said firm in his favour in order to enable him to file a single suit against the said firm forthwith on the basis of the said endorsed hundies and the opposite party also promised to make over the moneys to the petitioners and other creditors as soon as the same would be realised. In proof of his sincerity and honesty the opposite party offered to furnish the petitioner and other creditors with equal number of hundies of identical value in exchange for the said firm's hundies which were to be endorsed in his favour. Persuaded by the entreaties of the opposite party and believing in the same the petitioner and other creditors endorsed the firm's hundies in favour of the opposite party who filed a suit being Title Suit No. 966 of 1966 in this Hon'ble Court against the said firm sometime on May 19, 1966 for recovery of the said sums of money advanced. The opposite party also obtained some loans from the petitioner and his relatives on the plea that he required the same for meeting his personal needs as well as to meet the expenses of the said suit. Thereafter the opposite party intentionally avoided to keep any contact with the petitioner and other creditors and did not inform them of the position and progress of the said suit. As a result of such conduct of the opposite party the petitioner became suspicious and made enquiries about him. It was revealed on such enquiries that the opposite party who was the Managing Director of Calcutta Commercial Bank Limited was convicted for misappropriating the Bank's money and suffered imprisonment. The petitioner also came to know that in the suit being No. 966 of 1966 the said firm deposited a sum of Rs. 15,0007- in court to obtain leave to defend in the said suit. It also appeared that suddenly the opposite party made a compromise with the said firm reducing the claim of the suit from Rs. 33,590/- to Rs. 31,000/- and on the date of compromise, that is, 30-11-1966, the opposite party received a sum of Rs. 16,000/- in cash. On December 30, 1966, the opposite party withdrew from court the aforesaid deposit of Rs. 15,000/-. The opposite party, however, managed to keep the petitioner and other creditors absolutely in dark about the compromise of the said suit and also his realisation of the said sum. The petitioner, thereafter, filed a suit against the opposite party in this Court being Suit No. 389 of 1967 and the summons of the said suit was duly served on the opposite party who did not come forward to contest the said suit as he knew that he had no defence to offer. The said suit was decreed for a sum of Rs. 35,084/-. The opposite party then levied Money Execution Case No. 5 of 1968 in the First Court of Subordinate Judge at Alipore. On April 28, 1967, the opposite party filed an application under the provisions of Presidency Insolvency Act, 1909 before this Court and this was numbered as Insolvency Case No. 7 of 1967 for declaring him an insolvent. In the said petition the petitioners stated his residence to be at 14 S, Surendra Nath Banerjee Road, Calcutta. The opposite party was adjudged an insolvent on May 20, 1967 by this Court. The creditor petitioner, however, applied for annulment of the said declaration and adjudication and on December 18, 1970. This Court held that it had no jurisdiction to decide the case and an order annulling the declaration and adjudication was passed on December 18, 1970. The opposite party, thereafter, filed an application under Section 13 of the Provincial Insolvency Act, 1920 on April 20, 1971 in the Court of the District Judge at Alipore for adjudging him an insolvent on the ground that he was unable to pay his creditors and he had small assets which he was ready to surrender to the court. This was registered as Insolvency Case No. 17 of 1971. The said application was opposed by the petitioner and after contested hearing the opposite party was adjudged an insolvent 'by Order dated March 28, 1973. The petitioner, thereafter, filed an application under Section 35 of the said Act for annulment of the said order of adjudication on the ground that the opposite party did not comply with the provisions of Section 13 (1), Clauses (b), (d) and (e) by not mentioning his ordinary place of residence, not disclosing his debts to the Central Bank of India, Netaji Subhash Road Branch, Calcutta and also by not stating in his application that he was the author of two Bengali books. It has also been stated therein that the opposite party did not comply with the provisions of Section 22 of the said Act by not producing his books of account and the opposite party has not satisfactorily established his inability to pay his debt and as such prayed for annulling the said order adjudicating the opposite party as an insolvent.

(3.) The opposite party filed an objection on November 28, 1975 stating inter alia that all those objections were taken by the petitioner in his written objection filed in the said insolvency case and the same was heard and decided on contest by the court by its order No. 33 dated March 28, 1975. It has also been stated that the petitioner duly supplied the particulars of all his debts and he maintains no account books. It was also stated therein that the two books written by him were seldom sold in the market and they did not fetch any income at all It has further been submitted that there is no substance in the petition and as such there is no question of annulling the said adjudication.