KRISHNA CHINNOO AND SONS Vs. MATUBHAI KASANBHAI

JUDGEMENT

(1.) This is an appeal by certain opposing creditors against the order of Mr. Justice Daver sitting in Insolvency allowing the claim of respondent Nos. 1 to 2 (whom I shall call the claimants) in the insolvency of Evans. The material facts are as follows;-

(2.) Evans and on Kaderbhoy carried on business as joint building contractors and as such entered into an indenture of lease for 999 years, dated July 26 1920, with J.R. patel and B.S. Shroff, of certain land situated at Tardeo in Bombay at a monthly rent of Rs. 694-7-2 and subject to certain conditions one of which was that the lessees should build upon the land buildings to the value of Rs. 50,000 within 1 1/2 year from July 26, 1920. The lessees (sic) the deed of surrender for the Official Assignee's inspection. The Official Assignee took inspection of the deed on March 10, 1927. On April 8, 1927, the Official Assignee wrote asking for a reply to his letter of February 24, 1927. It is not clear what he meant by this letter as he had seen the deed of surrender and had disclaimed the lease, but it may have been that he had in his mind that the claimants must elect what position they were going to adopt under Rules 9, 10, and 11 of the second schedule.

(3.) Then on April 29, 1927, the Official Assignee declared a first and final dividend. The only intimation before us of his intention to declare a dividend is the notice of January 26, 1927, published in the press on February 5, 1927. On July 21, 1927, the claimants wrote to the Official Assignee saying they had replied to his letter of February 24, 1927, on March 7, 1927, and asking if he admitted their claim. On July 23, 1927, the Official Assignee rejected the proof on the ground that the deed of surrender operated to extinguish the whole debt against the insolvent.