SHITAL DASS Vs. DEOHANS

JUDGEMENT

(1.) THIS is an appeal by the creditors under Section 75 (1) of the Insolvency Act against an order of the District Judge, Bharatpur, holding that the provision contained in Section 9 (1) (c) that the act of insolvency on which the petition is grounded should have occurred within 3 months before the presentation of the petition is not a period of limitation but is a condition precedent and that Sections 5 and 14 of the Limitation Act are not applicable.

(2.) THE act of insolvency was committed on 2-5-1961. The creditors filed a petition under Section 9 before the Agra Court as the agricultural land which the debtor had transferred to defeat them, was situate in the district of Agra. It was finally held by the District Judge, Agra on 10-7-63 that since the debtor was not residing in Agra that Court had no jurisdiction. The petition was returned for presentation to proper Court on 27-7-63. It was filed in the Court of the District Judge, bharatpur on 9-8-63. If Section 14 of the Limitation Act is applicable to petitions filed under Section 9 (1) (c) then the present petition would be within limitation.

(3.) THE majority of High Courts have held that the period of 3 months prescribed under Section 9 (1) (c) is not a period of limitation but is a condition precedent. But a Full Bench of the Allahabad High Court however held in Raja Pande v. Sheopujan Pande, AIR 1942 All 429 (FB), that this period is a period of limitation and not a condition precedent. But at the same time the majority of the Judges constituting the Full Bench held that the Provincial Insolvency Act is a special law within the meaning of Section 29 (2), Limitation Act which contained a complete code in the matter of limitation therefore the application of Sections 4, 9 to 18 and 22 except to the extent to which they are made applicable by the provisions of the provincial Insolvency Act, is expressly excluded.