SUMERMULL SURENA Vs. BANSILAL ABIRCHAND

JUDGEMENT

(1.) On 18 July 1930 an adjudication order was made in this Court against the firm of Sumermull Surena of which the partners are two persons, Sumermull Surena and Udai Chand Ram-pooria. The adjudication order was made on the debtor's own petition and it appears that at the time when the petition was presented both these individuals had gone to Bikanir. In the Rule obtained by them, and out of which the present appeal arises, they were described as both residing in Bikanir though Udai Chand has made an affidavit in which ho denies that their permanent residence is Bikanir saying that they generally and usually reside in Calcutta save and except for occasional visits to Bikanir. Shortly after the adjudication order, namely, on 15 August 1930, the insolvents submitted a scheme of composition which was accepted by the creditors on 1 September and approved by the Court by an order dated 10 September 1930. The scheme provided that the secured creditors would be paid in full from the securities and that the dividend of six annas in the rupee should be paid to the unsecured creditors out of the estate and effects to be made over to the trustees of the composition. It was further provided in the scheme that on the composition being approved by the Court all the estate of the insolvent would vest in the trustees who would have full power to sell and realize the same.

(2.) The respondents before us are a firm which styles itself Rai Bahadur Bansilal Abirchand. This firm was an unsecured creditor and was entered in the debtor's statement of affairs as having a debt of Rs. 9,948. The partners of this firm are, in my opinion, upon the evidence, shown to be domiciled in Bikanir and permanently resident in Bikanir. They carry on business however at various places in British India--Calcutta among others-- and the debt in question was admittedly a debt which, arose out of transactions entered into in Calcutta by their Calcutta branch. It now appears that on 17 July 1930, a day before the insolvent firm presented its petition the respondent firm brought a suit against it in the Court at Bikanir for the amount of their debt. They impleaded as defendants not only Sumermull Surena and Udai Chand Rampooria but certain other persons on the footing that the business carried on by their debtors in the name of Sumermull Surena was a joint family business. The form of the claim was that the firm of the defendants in Calcutta had borrowed money from the firm of the plaintiffs in Calcutta.

(3.) There is some dispute whether the respondent firm was served with notice of the application for composition; but in my judgment nothing turns upon this. The respondent firm never proved in the insolvency but has contented itself with prosecuting its suit against the insolvents at Bikanir.