UMESH CHUNDER SEAL Vs. GMFALKNER

JUDGEMENT

(1.) In these cases, it appears that two insolvents of the name of Girish Chandra Seal and Manindra Chandra Seal were alleged by the Official Assignee to have executed within two years of their insolvency certain transfers which were not made for consideration or in good faith and the Official Assignee brought two motions before the learned Judge exercising insolvency jurisdiction on the original side to have it declared that these transfers were void as against him and for the consequential direction that the properties be made over to him as part of the estates of the insolvents for the benefit of their creditors. The person who had in each instance taken the transfer from the insolvent was one Gour Chand Mallik, and, so far as the appellant Umesh Chandra Seal is concerned, he had taken a transfer from Gour Chand Mallik on 17 March 1930, which was a substantial time after the adjudication order. Girish Chandra Seal was adjudicated on 3 August 1927 and Manindra Chandra Seal was adjudicated on 13 July 1928. It appears that under Section 36, Presidency Towns Insolvency Act, Gour Chand Mallik had been examined at some length and there was also a deposition of Umesh Chandra Seal under the same section.

(2.) Now, the notices of motion launched by the Official Assignee were not brought until 2nd July 1930 and he impleaded both Gour and Umesh and certain other persons. I very much regret to see that a part of the method by which he expected to succeed was this: He presented a fabulously long petition the main purpose of which was to include a large part of the answers given by Gour at his private examination under Section 36 of the Act. I do not like to blame either the Official Assignee or his attorney because I see from p. 28 of the paper book in Appeal No. 17 that the petition was drawn by learned Counsel; but I do protest against the extraordinary ignorance of practice and the law of evidence which the petition discloses. First of all, there is no such thing as petition so far as I (knew under the insolvency rules in connexion with a notice of motion.

(3.) The person who wants to bring a proceeding must first make up his mind whether he should bring it by a writ or by a notice of motion or by summons or by a petition, but why in the world instead of an affidavit in support of his motion he should produce something which he calls a petition under the insolvency jurisdiction I cannot understand. The thing was evidently intended to be an affidavit, but was called a petition, so that it might appear to combine the character of a true statement on oath with the advantages of a pleading, and all this matter which was entirely irrelevant and not evidence against anybody save Gour was introduced apparently because in that way it could get under the nose of the Court before the Court could very well help itself. I do most earnestly deplore that kind of practice. I think it is time that the elements of the practice in insolvency should be known to the members of the Bar, to the attorneys and, to the Official Assignee. On this point the proper practice can now be seen from the very first of forms provided at the end of. the Insolvency Rules (of p. 718-9. of Mr. Remfry's edition, 1930). However this matter came on before the learned Judge and a mass of evidence was introduced which was probably good enough evidence against Gour and not a word of which was evidence against the person really concerned, namely, Umesh, who by this time had taken a transfer from Gour. That was one trouble. The next trouble was this : Apart from what was not evidence against Umesh, there seems to have been almost literally not a scintilla of evidence at all. No witness was called and the position was that there was only an affidavit exhibiting "what the soldier said" and very little else. The next thing that appears to have caused a certain amount of trouble is the fact that both sides at this time were not unnaturally under the impression that the Official Assignee had only to point to Section 55 and it would be the duty of the respondents to prove affirmatively that the transactions objected to between Gour and the insolvents were for consideration and in good faith. Indeed it seems to have been thought that they had to establish the adequacy of the consideration. We now know from the case of the Official Receiver V/s. Chettyar Firm which is a. decision on exactly the same words in the Provincial Insolvency Act (where the section is numbered 53) that that is not so. The Official Assignee in this case has to prove that the transactions were not made in good faith and for valuable consideration : both voluntariness and mala fides if relied on have to be proved by the Official Assignee. Before these properties can be taken away from Umesh and given to the Official Assignee these facts with reference to the transactions, between the insolvents and Gour must be proved by evidence which is good evidence against Umesh and it does not matter what admissions are made by persons whose word is not evidence against Umesh.