MAYA OOKEDA Vs. KUVERJI KURPAL

JUDGEMENT

(1.) In this case the plaintiffs and defendant No. 11 formerly carried on business in Bombay in the firm name of Maya Ookeda and Co. On January 28, 1927, the firm of Kurpal Doongersey and Co. passed three hundis in favour of the firm of Maya Ookeda and Co., each for a sum of Rs 10,000 payable on May 28, 1927. Those hundis have been put in before me as Ex. B, and it has not been disputed that the firm of Kurpal Doongersey and Co. passed those hundies for valuable consideration, and that they did not pay them on the due date or at all. The present suit is brought against the surviving partners of the firm of Kurpal Doongersey and Co., and the heirs and legal representatives of persons who were partners at the time that the hundis were passed, but who are since deceased. Defendant No. 11 was joined as a defendant, because, although he was a member of the firm of Maya Ookeda and Co., he refused to join as a plaintiff in the suit No relief is claimed against him.

(2.) Defendants Nos. 3 and 5 have put in a joint written statement. Defendant No. 4 has put in a written statement. Mr. Amin appears for defendants Nos. 1 to 8, although some of those defendants have put in no written statement. Defendants Nos. 9, 10 and 11 are absent. Affidavits of service upon them were put in.

(3.) In the written statement of defendants Nos. 3 and 5 it is alleged that by an order made by the Rangoon High Court on or about January 25, 1928, the firm of Kurpal Doongersey and Co. and the partners thereof were adjudged insolvents. It is further alleged that the plaintiffs have not obtained the leave of the Insolvency Court to institute this suit, and it is submitted that the suit is, therefore, not maintainable and should be dismissed. Other defences were raised in that written statement, but they have not been proceeded with, and no issues have been raised in reference thereto. Defendant No. 4 in his written statement denies that he is the heir or legal representative of Mulji Tejsey who was a partner in the firm of Kurpal Doongersey and Co., and he submits that the suit against him should be dismissed. He also adopts in the alternative the written statement of defendants Nos. 3 and 5. The issues in the case are as follows:- 1. Whether the firm of Kurpal Doongersey and Co. was adjudicated insolvent on January 25, 1928 ? 2. Whether the suit is maintainable in view of no leave being obtained under Sec. 17 of the Insolvency Act ? 3. Whether defendant No. 4 is the heir and legal representative of Mulji Tejsey