HARISH CHANDRA MUKHERJEA Vs. EAST INDIA COAL COLD

JUDGEMENT

(1.) This is an appeal from an order of Mr. Justice Fletcher, who dismissed an application made to him by one Harish Chandra Mukerjee for the purpose of obtaining an annulment of an adjudication against him under Section 10 of the Presidency Towns Insolvency Act of 1909. This adjudication order was made by Mr. Justice Harington on the 15th of June 1911, and the act of insolvency on which it was made is set out in the order: It is that "the properties of the said Krishno Kisore Adhikary, Sasti Kinkar Banerjee and Harish Chandra Mukerjee have been attached in execution of a decree of this Court in its Ordinary Appellate Jurisdiction for a period of more than 21 days." The petition sought for an adjudication against these three debtors, and the order was in accordance with the terms of the petition. The present appellant, one of those adjudged insolvents, that is to say, Harish Chandra Mukherjee, seeks to have the adjudication annulled on the ground that his property had not been attached in execution of a decree of this Court. His reason for so contending is that although property had been attached as his, it was in fact not his and was claimed in the execution proceedings on behalf of an endowment as not being the property of Harish Chunder Mukherjea. When the petition for adjudication was presented, that claim was still pending and had not been decided. In the circumstauces, it is urged that there has been no act of insolvency within the meaning of Section 9(e) of the Insolvency Act. Mr. Justice Fletcher did not deal with this point, as it appeared to him that inasmuch as there had been an attachment of the property of the other judgment-debtors and that attachment had continued for a period of not less than 21 days in execution of the decree of the Court for the payment of money, that operated as an act of insolvency not only by these judgment-debtors, but by Harish Chander Mukerjea. That view the learned Judge sought to base on a joint reading of Section 9(e) of the Presidency Towns Insolvency Act and Section 13 of the General Clauses Act. Though this view was presented to us by Mr. Sinha, he did not seriously press it, and in that I think he exercised a wise discretion. It appears to me not to be in accordance with the true construction of Section 9(e) alone or in conjunction with Section 13 of the General Clauses Act to give the Section 9(e) the operation attributed to it by Mr. Justice Fletcher.

(2.) Mr. Sinha suggests that his case is strengthened by the fact that the debt was a joint judgment-debt, that the judgment-debtors were three of the members of a partnership and that the debt was in respect of partnership matters. But I do not think those considerations are sufficient to displace what appears to me to be the fair meaning of Section 9(e) of the Presidency Towns Insolvency Act, and of the underlying principle which requires that the act or default which amounts to an act of insolvency must be the personal act or default of the particular individual or in certain circumstances of his agent. In my opinion, the mere fact that there may have been an act or default on the part of the co-judgment-debtors, which might be regarded as against them as an act of insolvency, does not amount to an act of insolvency by Harish Chandra Mukerjea. But we cannot dispose of the case on that ground alone, for there still remains the question whether or not the property which is alleged to be that of Harish Chandra was in fact his, and so came within the description of his property attached for a period of not less than 21 days in execution of the decree of a Court for the payment of money. That is a point into which, as I have already indicated, Mr. Justice Fletcher did not go. In the view we take, that point is one that he should have determined, and we must, therefore, send back the case for the Commissioner in Insolvency to determine whether or not there has been an act of insolvency by Harish Chandra Mukerjea. It is true that the petition on which the original adjudication was made may have referred to other possible acts of insolvency, but Mr. Sinha, who appeared before us on behalf of the petitioning creditor, has abandoned any desire to support the adjudication on any other ground than that en which it purports to have been made by Mr. Justice Harington, that is to say, the ground coming within the description of Section 9(e) of the Presidency Towns Insolvency Act: and, therefore, it will be for the learned Commissioner, when the case comes before him, to determine not in reference to other possible acts of insolvency but on this and on this alone. I pause here for a moment to say that this election was made by Mr. Sinha deliberately and for a particular, and in his point of view, very good reason.

(3.) The only question then that remains is how the Commissioner should dispose of this question that will come before him. It will be open to him either to determine it himself if he thinks fit, or, should he think it necessary, to direct that it should be determined in some other proceedings appropriate for that purpose. On that I think it would not be right for us to express any definite opinion. It must be a matter to be determined by him when the matter comes before him. All we say is that we do not think that it is a question that can properly be determined merely on affidavit evidence.