(MALLIK) RAMLAL Vs. OFFICIAL ASSIGNEE OF CALCUTTA

JUDGEMENT

(1.) This is an appeal by one Malik Ramlal who is stated to have on 4 February 1930 presented a petition in the Delhi Court for adjudication of the firm of Tulsidas Kissendayal and on whose petition the Delhi Court made an order of adjudication against these parties on 13th February 1930. At the time these proceedings were initiated and taken to completion the position was that the debtors had committed an act of insolvency under the Presidency Towns Insolvency Act on 4 January, a petition in insolvency had been presented against them in Calcutta and this Court in Calcutta on 17 January had appointed the Official Assignee interim receiver of their assets in Calcutta, Delhi, Karachi and elsewhere. On 15 February, that is, two days after the date of the adjudication order of the Delhi Court, this Court made an adjudication order. In these circumstances, an application was made by the Official Assignee to the Delhi Court for an order under Section 36, Provincial Insolvency Act, that Court should cancel the insolvency proceeding pending before itself or stay those proceedings. That application was dismissed by the Delhi Court. A Calcutta creditor had at or about the same time presented a similar application which application has not yet been disposed of by the Delhi Court. In these circumstances, the Official Assignee in Calcutta who had taken possession of certain Calcutta properties as interim receiver applied to the learned Judge on the original side sitting in insolvency for a direction whether the estate should stay under his own management or whether the proceedings ought to be carried on by the Official Receiver, Delhi.

(2.) The learned Judge before whom it first came made an order and directed that a copy should be sent to the Judge of the insolvency Court in Delhi and to the receiver. Nothing happened as a result of that and, on 1 September 1931, another learned Judge exercising the insolvency jurisdiction of this Court directed the Official Assignee to take steps to sell the property in his hands. It appears that he also directed the Official Assignee to appeal from the order of the Delhi Court refusing to take action under Section 36, Provincial Insolvency Act. But Mr. Roy informs us that this latter course would be infructuous as the time for appealing has elapsed.

(3.) We have therefore to say whether the learned Judge's direction to the Official Assignee to sell the Calcutta property in his hands should be allowed to stand. Now, it is true that under the Presidency Towns Insolvency Act, the title of the trustee relates back to the date of the first available act of bankruptcy having regard to the date of the petition and in this case the act of bankruptcy relied upon by the Calcutta petitioning creditor was prior to the adjudication order made in Delhi. It has however been decided in the case of Official Assignee of Madras v. Official of Rangoon AIR 1919 Mad 566 that the adjudication order which is prior in time vests the property of the insolvent regardless of the doctrine of relation back which might be applied in favour of the Official Assignee under the later order. In these circumstances it appears to be plain that on 13 February 1930 the property with which we are concerned really vested in the insolvency Court at Delhi or its receiver and, in my judgment, it was not in these circumstances open to the learned Judge on 1 September 1931 to give a direction to the Official Assignee here to sell the Calcutta property.