BHIMAJI BHIBHUTMAL Vs. CHUNILAL JAVERCHAND

JUDGEMENT

(1.) Section 28(2) of the Provincial Insolvency Act, 1920, (which corresponds in its relevant part with the Presidency-towns Insolvency Act, 1909, Section 14) requires leave of the Court to commence suits, It runs : On the making of an order of adjudication,...no creditor to whom the insolvent is indebted in respect of any debt provable under this Act shall daring the pendency of the insolvency proceedings have any remedy against the property of the insolvent in respect of the debt, or commence any suit or other legal proceeding, except with the leave of the Court and on such terms as the Court may impose.

(2.) If a suit is commenced without the leave of the Court is it imperative on the Court to dismiss the suit ? So it was argued by Mr. Coyajee for the defendant. He contended that the view taken by Mr. Justice Davar in In re Dwarkadas Tejbhandas (1915) I.L.R. 40 Bom. 235 : s.c. 17 Bom. L.R. 925. was that once the suit had been brought without leave obtained, no course was open to the Court but to dismiss the suit; and that that decision had been followed in Ghouse Khan V/s. Bala Subba Rowther (1927) I.L.R. 51 Mad. 833, and Ponnusami V/s. Kaliaperumal [1929] A.I. R. Mad. 480.

(3.) The decisions on the point refer to several allied questions which it is convenient to distinguish at the start :-