ARBUTHNOT AND CO INSOLVENT DEBTORS,REPRESENTED BY THE OFFICIAL ASSIGNEE OF MADRAS Vs. ASABAPATHY MUDELIAR

JUDGEMENT

(1.) A preliminary objection has been taken that the appeal is out of time as the order was made on the 8th April 1809 and the appeal was not filed within one calendar month as required by Section 73 of the Indian Insolvency Act, 1848. The vacation in that year began at the end of April, and the appeal was filed on the reopening day in July. As regards this point, we are not prepared to differ from Aravamudu Iyyangar v. Samiyappa Nadan 21 M. 385 Sambasiva Chari v. Ramasami Reddi 22 M. 179 and Haji Ismail Sait v. The Trustees of the Harhour Madras 23 M. 289 a series of rulings which appear to have been generally accepted and acted on for a period of some years.

(2.) WE, therefore, hold the appeal is in time. The appeal relates to the sum of Rs. 1,000 which the petitioner, as Head Godown-Keeper, was required to deposit with Messrs. Arbuth- not and Co., as security on his appointment as Head Godown-keeper and which he paid in or. 18th April 19C6. In his affidavit he merely states it was taken from him as security for the performance of his duties, it being understood that it should be returned to him when he left the service. The Official Assignee reports that it was placed by the firm in fixed deposit in the name "Ourselves, account of security for A. Sabapathy Mudali as Godown-Keeper". The Official Assignee adds that the usual procedure of the firm was so to deposit security money at 5 per cent, and the interest would, we think, in due course have been paid to Sabapathy or credited to his security account, if the insolvency had not supervened before any interest was payable. The Official Assignee suggests that the petitioner must have been aware of the manner in which his security money was dealt with, but the learned Commissioner observes that there was no evidence that this was ever communicated to him and has allowed the claim. With great respect, we think the principle laid down in Smith s case Official Assignee of Madras v. Smith 32 M. 68 : 5 M.L.T. 164 : 1 Ind. Cas. 712 is applicable and that the relation of debtor and creditor should be deemed to have come into existence between the Bank and the petitioner in respect to his payment, unless good reason is shown to the contrary. WE think no such reason has been shown and that the proper inference is that the money was a debt which would have been dealt with in the way according to the usual practice and with the petitioner s assent. WE think he would have far preferred the investment of the money in what was then, unfortunately, a favourite security to the same being left lying idle. With great respect, we are constrained to differ from the learned Commissioner and must allow this appeal and dismiss the petition with costs.