KETOKEY CHURAN BANERJEE Vs. SREEMUTTY SARAT KUMARI DABEE

JUDGEMENT

(1.) In this case the adjudication in insolvency was made on the 2nd of February 1912, upon the petition of Sarat Kumari Dabee. An application for the cancellation of the adjudication was made in March 1912, based, as I understand, on the ground that there was no debt due to Sarat Kumari Dabee, and this application for the cancellation of the adjudication was dismissed, and, therefore, the adjudication in insolvency stood. And, the first point taken by the learned Counsel appearing for Sarat Kumari Dabee was that inasmuch as the adjudication had been made upon her petition, it was not now open to the insolvents to question her right to claim in the insolvency as a creditor. I do not think that is a sound point, for the reason that if we look at the Sections of the Second Schedule to the Presidency. Towns Insolvency Act, Sections 25, 26 and 27, it is clear, to my mind, that after the adjudication of insolvency the Official Assignee is to examine every proof and the grounds of the debt and in writing to admit or reject it in whole or in part, or require further evidence in support of if and, if he rejects a proof, he shall state in writing to the creditor the grounds of the rejection. In my opinion, it must be open to the Official Assignee after the insolvency to examine the claim of the petitioning creditor and if he finds that in fact there is no debt due to the petitioning creditor, he surely must say so and strike out his or her name from the list of creditors. For this reason I do not think that the first point taken by learned Counsel is a good one.

(2.) The second point which the learned Counsel for Sarat Kumari Dabee argued was that the learned Judge s judgment ought to be supported on the merits of the case. Now, it appears that the claim of the alleged creditor in the first instance was stated to be Rs. 8,000 and then subsequently it was increased to Rs. 15,641, and that appears to be the balance of an account which appears in the hatchitta which is set out in the paper-hook No. 2, and we have been informed that there are entries in the firm s books, which correspond with the entries in the hatchitta. Now, the first entry in the account, page 1, is a sum of Its, 2,487-8-6, which on the face of it appears to be due by the firm to Sarat Kumari Dabee. It is, however, admitted by the learned Counsel who appears for her that that money was advanced by her husband Surendra Nath. Bannerjee, and was not her money at all. The second item which appears in that account is a sum of Rs. 14,498-136: that appears to have been originally a debt due from the firm to Nogendra Nath Bannerjee, brother-in-law of the lady. That item was transferred from the account of Nogendra Nath Bannerjee in January 1909 to the account of the lady, and it is not suggested that any consideration passed for that transaction, and it is now admitted that that really was money advanced by Nogendra Nath, and the lady in respect of that item was not in fact a creditor of the firm. Now, with regard to the rest of the items, when we once get it admitted that of these two items, the first represents a debt due to her husband and the second, a debt due to her brother-in law, it makes the Court particularly careful to require proof of the remainder of the items. The lady has not been called as a witness. She has not come forward to say that she advanced those moneys. Her husband has not been called as a witness to say that the money was his wife s, and, the result is that I am led to think that this account is not an account of the lady at all; it is partly an account of her husband and partly an account of her brother-in-law. In addition to the reasons which have been given by the Official Assignee in the judgment, I think the statement of these facts is sufficient for the judgment at which I have arrived, and this is that this lady is not a creditor of the firm at all, and that her name ought to be struck cut of the list of creditors This, as I understand, does not prevent the persons who have really advanced the moneys to the firm from coming forward and substantiating their claims against the firm. It is right that the persons who really advanced the moneys should come forward and prove their claims to the Court. As between them and the firm and other creditors in the case different questions may arise than what would arise between the lady and the firm and other creditors of the firm.

(3.) There is only one other point which has been urged by the learned Counsel and that is that inasmuch as the lady, if she was in the position of a benamdar, could sue for the money, she is entitled to claim as a creditor in the insolvency.