DEBENDRA CHANDRA SARKAR Vs. MESSRS PURUSOTTAM DAS

JUDGEMENT

(1.) This is an appeal preferred by three insolvents against the judgment of the learned District Judge of the 24-Per. gannas, dated the 13th March 1919, adjudicating them and another person insolvents under the provisions of the Provincial Insolvency Act. The ad judication was made at the instance and on the petition of certain creditors. It is not suggested that the debts were not sufficient on which an insolvency petition could, be filed, but the points taken are these. That adjudication is against four persons who are described as carrying on business within the jurisdiction of the Court under the name and style of so and so. That is the ordinary way of making a petition against the debtors who are carrying on business in co partnership; and the name of the firm is ordinarily used when the names of the partners are not known. The act of insolvency alleged is this that with intent to defeat or delay the creditors, the debtors, within one week before the petition, made a transfer of the greater portion of their stock in trade and were about to execute Benami Kobalas of their other immoveable properties. The learned Judge came to the conclusion that the allegations in the petition had been proved and made the order of adjudication. It is said there is a large number of persons other than these four men who are partners of the firm. The learned Judge disbelieved it. I see no reason to differ from him.

(2.) The other point is this: There are assets of the firm of the partners and there are separate estates of the various insolvents named who are members of that firm, and it is said that the learned Judge has made no order as to the course of administration in insolvency that ought to be made with reference to the joint estate of the firm and to the separate estates of the partners. That point need not be considered now, because that is a matter that must be considered and determined during the course of the insolvency proceedings. It may be found that the assets of the partners of the firm are sufficient to pay in full the whole of the creditors on a careful realization by the Receiver in insolvency. In that case, no question will arise as to this. On the other hand, there may be a deficiency in the assets of the firm. In that case, the creditors will have to resort to the assets of the separate estates of the partners, and then it will have to be determined what are the separate assets of the partners and how far the creditors are to be paid from the assets of the separate estates. These are matters which are to be determined hereafter and the insolvents will thus be entitled to urge any points they wish to urge.

(3.) The other point is that there is no available act of insolvency. The available act of insolvency is a transfer with interest to delay or defeat the creditors. Another act of insolvency was proved during the hearing before the learned Judge, namely, that Behari Lal Sikdar, a senior partner of the firm, had given notice that the firm had suspended or was about to suspend payment. That was not set out in the petition as an act of insolvency. It clearly could not be used for the purpose of getting the order, but it could be used for showing whether or not these transfers made so shortly before the petition for insolvency were made for the purpose of defeating or delaying the creditors or whether properties of the nature stated were net dealt with to delay the creditors. I think there can be little doubt as to what are the true facts. Those transactions were entered into with intent to defeat or delay the creditors; and, although the notice to suspend payment was not available, it is a material fact that, at or about the same time that the notice was given, the debtors were unable to pay and were selling certain of their immoveable properties and mortgaging the rest for a considerable sum to the brother-in-law of one of them. The insolvents gave evidence before the learned Judge, but they gave no explanation why these monies were taken and what they did with them. The only conclusion is that these transactions were made with intent to defeat or delay the creditors of the insolvent.