T V SANKARANARAYANA AIYAR Vs. ALAGIRI AIYAR

JUDGEMENT

(1.) The question is whether the adjudication as insolvent referred to in Section 36, Provincial Insolvency Act, is to be treated as made on the actual date of the order of adjudication or with reference to Section 16(6) on the date of the presentatior of the petition in which the insolvency originated. I have had the advantage of reading my learned brother s judgment and I can give my reasons for agreeing with him shortly.

(2.) The important point is, I think, that the application of Section 16(6) is not subjected to any explicit restriction. It no doubt stands as part of the section relating to the order of adjudication and its immediate consequences not as a separate provision, like S.43 of the English Act of 1883 and Section 51 of the Presidency Towns Insolvency Act. But neither that nor the detailed comparison relied on by respondents between the provisions of the Provincial Act inter se and with those of the other Acts referred to goes far towards supporting their contention that Section 16(6) affects only the provisions as to the date, from which the insolvent s property vests in the Court or receiver not those relating to avoidance of his dealings with it. It has not in my opinion been shown that there is any scheme of the, Provincial Act, which entails any particular interpretation of Section 36, with which alone we are concerned and with which alone I desire to deal The only acceptable presumption, which has been suggested to us, is against an interpretation such as respondents which would allow the insolvent s or the Court s del ays to reduce the period before the petition, transfers during which are liable to be avoided. That presumption is entirely in accordance with the provisions of Section 47 of the English Act, under which that period ends, when the bankruptcy, as defined in Section 43, begins, independently of the date of the petition or time taken in its prosecution. Respondents argument has been based mainly on the difference between the wording of Sections 36 and 37 of the Provincial Act and the inference that different dates for the end of the period were intended. That difference is perhaps due to adhesion to the wording of the corresponding English Sections 47 and 48, the fact being disregarded that,whereas in the former the reference to the bankruptcy as fixing the end of the period did provide a date different from that provided in the latter by reference to the presentation of the petition, the dates provided in Section 36 read with Section 16(6) and in Section 37 of the Provincial Act would be the same. But, whether that is so or not, I am not prepared to reject in favour of this inferential construction that which the unrestricted wording of Section 16(6) and the objects of the statute dictate. Next Madhu Sardar v. Khitish Chendra Banerjee (1914) I.L.R. 42 Cal. 289 and Hemraj Champa Lall v. Ramkishen Ram (1916) 2 Pat. L.J. 101 are relied on as supporting a restricted application of Section 16(6) since they negative its application to Section 34(1). But I concur with my learned brother in respectfully doubting the correctness of the reasons given for those decisions and I observe that (1) they go further than respondents argument since respondents do not deny that Section 16(6) controls the vesting provisions of the act, of which Section 34 is one, and (2) the case of ex-parte Fox (1886) 17 Q.B.D. 4 referred to in the former supports a construction of the English Act similar to that claimed by appellant for the Provincial.

(3.) In these circumstances appellant s contention must be accepted and the appeal must be allowed, the lower court s order being set aside and the petition being remanded to it for re- admission and disposal with reference to the other questions raised. Costs to date here and in the lower court will be costs in the case and will be provided for in the order to be passed. Sadasiva Aiyar, J.