NEMAI CHANDRA SADHUKHAN Vs. CHHATRAPATI SADHUKHAN

JUDGEMENT

(1.) This is an appeal by one of the debtors against order No. 15 dated November 15, 1976, passed in Insolvency Case No. 38 of 1976 disposing of the petition filed by the debtors on November 8, 1976, for vacating the order appointing the Official Receiver as interim Receiver of the properties and assets of the debtors mentioned in the petition.

(2.) The creditor Chhatrapati Sadhukhan filed an application under Section 13 (2) of the Insolvency Act, 1920 being Insolvency case No. 38 of 1976 in the 6th Court of the Additional District Judge, Alipore for adjudging the debtors opposite parties Nos. 1 and 2, Nemai Chandra Sadhukhan and Gour Chandra Sadhukhan as insolvent alleging that they had committed acts of insolvency by refusing to pay the sum due to the petitioner, by declaring to the petitioner on July 30, 1976 that they suspended payment of their debts to the petitioner and by closing down the business sites at 88, B. T. Road, Lakhikantapor-Bijoygunj Bazar and Akra in order to defraud the creditors. In the said case an application under Section 20 of the (Provincial) Insolvency Act to be hereinafter referred to as "the said Act" has been filed for appointment of an interim Receiver to realize the entire sum of Rs. 67,000/- due to the petitioner from out of the properties and assets of the debtors mentioned therein. It has been alleged in the petition that the debtors in order to defraud the creditors have transferred assets and properties in the benami of their wives. By order No. 6 made ex-parted on September 17, 1976, the Official Receiver was appointed Receiver of the properties and assets of the debtors. The debtors opposite parties Nos. 1 and 2 made an application for vacating the said order as well as for stay of operation of the said order mainly on the grounds that the acts alleged in the petition did not constitute acts of insolvency as specified in Section 6 of the Act. It has also been stated therein that the business site at Lakhikantapur-Bijoygunj Bazar ceased to operate since 1972 and the license of the said business was into renewed since January, 1973. It has also been stated that no business was carried on in Premises No. 88 B. T. Road due to non-availability of electricity therein and the business of Akra though stopped temporarily will be resumed soon. The allegations of transfer of assets of business and properties by the debtors are absolutely vague as no particulars about the dates of such transfers and in whose favour such transfers have been made have not been stated at all and as such these allegations could not form as acts of insolvency within the meaning of the said Act. It has also been alleged that he court has no jurisdiction to entertain the case as the cause of action has accrued at 106-D, Raja Dinendra Street, and the opposite parties 1 and 2 reside at 60/17, Gouribari Lane which are within the Presidency Town of Calcutta.

(3.) By order No. 15 the Additional District Judge, 6th Court, Alipore stayed the operation of the order until further orders in regard to the properties or assets at 60/17, Gouribari Lane and 106-D, Raja Dinendra Street being held to be outside the jurisdiction of the court. The said order has not been vacated in so far as the properties or assets at Lakhikantapur-Bijoygunj Bazar, 88, B. T. Road, Baguihati Bazar and Akra and the properties and assets at 242/F, Acharya Profulla Chandra Road are concerned. It has also been held that he other pleas taken in the petition could not be decided at the present stage of the insolvency case when appropriate materials in respect of them are yet to come and the application was thus disposed of. It is against this order this appeal has been preferred by one of the debtors and leave has been duly obtained from this Court.