NILMONI CHOWDHURI Vs. BASANTA KUMAR BANERJEE

JUDGEMENT

(1.) This is an appeal against an order of the District Judge of Murshidabad declaring a mortgage said to have been executed by an insolvent in favour of the appellant on the 13th November 1912, void against the Receiver in the insolvency proceedings and annulling the same. The learned Judge upon a consideration of the circumstances and the evidence adduced on behalf of the Receiver has come to the conclusion that the mortgage was a bogus transaction effected in bad faith and that it was not for valuable consideration.

(2.) It is contended on behalf of the defendant that the onus is upon the Receiver to show that the transfer was not made in good faith and for valuable consideration. We are of opinion that the onus is upon the Appellant to prove that the transfer was made in good faith and for valuable consideration. The wording of the section, in our opinion, leaves no doubt as to the person on whom the onus should rest. This contention, therefore, must be overruled. It is next contended that the appellant had not sufficient opportunity of adducing evidence. It appears that the appellant had no witnesses in Court present, except one, on the day on which the matter was taken up by the Judge. An application was presented on behalf of the appellant to the Court for postponing the case on the ground that the witnesses were not present and that he himself was not able to attend Court to give his deposition. The learned Judge disallowed, that application and the result was that the case had to be decided on the evidence adduced by the Receiver only. In all the circumstances of the case we think that another opportunity ought to be given to the appellant to produce evidence in the case. But this must be upon terms. We accordingly direct the case to be sent back to the lower Court at once; and on the appellant depositing into the Court below the costs incurred by the respondent in the lower Court and the costs of this Court, the hearing-fee in this appeal being assessed at five gold mohurs, within one week from the date of arrival of the record and this judgment, and on the appellant applying to the Court below to issue summons upon his witnesses and depositing all necessary costs for the purpose within one week from the arrival of the record and this order, the Judge will issue summons upon the witnesses for the appellant and fix an early date for the re-hearing of the case. The appellant will be entitled to have the live Calcutta witnesses who were cited summoned by the Court and also the two witnesses mentioned in the list of witnesses dated the 14th November, who are residents of the District of Murshidabad, examined provided the appellant can procure their attendance without summons. The respondent will be entitled to adduce any rebutting evidence he wishes to do.

(3.) On the appellant failing to deposit the costs within the time specified, this appeal will stand dismissed with costs.