MAGADHU PILLAI ROWTHER Vs. ASAN MUHAMMADHU ROWTHER

JUDGEMENT

(1.) The question for our decision in this second appeal is whether the certificate of conformity, Exhibit I, granted to the defendant, who is the appellant before us, by the District Court of Colombo under Section 124 of the Ceylon Insolvency Ordinance, VII of 1853, is a valid defence to the plaintiff s suit for money.

(2.) The facts may be shortly stated as follows: Plaintiff and defendant were traders in Ceylon in 1914 and previously. They had dealings with each other and as the result of them the defendant became indebted to the plaintiff. In March 1914 they settled the amount due at Rs. 1,000 and entered into a contract, Exhibit A, which provided that defendant was to go to India by the 30th of May and execute and register a deed of othi of certain lands of his in India in favour of the plaintiff for Rs. 2,000 and deduct the Rs. 1,000 and interest from the amount payable to him by the plaintiff for the othi and receive the balance before the Sub- Registrar and deliver the deed to him. It also provided that, on default, defendant was to pay, besides the principal and interest due, a sum of Rs. 250 as compensation for the breach of contract and the plaintiff was to recover the whole amount from defendant personally and from the lands. The document was not registered and the charge did not take effect. The defendant never came to India and the contract was never performed.

(3.) In 1915 the defendant applied in insolvency in Colombo and finally obtained Exhibit I which, under Section 126 of the Ceylon Ordinance, discharged him, subject to the provisions of the Ordinance from all debts due by him when he became insolvent and from all claims and demands made provable under the insolvency." There was a question before the District Munsif whether plaintiff had been joined as a creditor in the schedule and whether he had notice; the Munsif found the points against the plaintiff and no objection was taken to his finding in appeal. It is clear from plaintiff s own admission in his evidence that he was residing in Colombo at the time of the insolvency proceedings and it may also be stated that the contract, Exhibit A, was entered into in Colombo. Plaintiff apparently did not appear in the insolvency proceedings and did not claim or receive any dividend. Towards the latter part of 1915 both the parties came to India and plaintiff brought this suit here for the Rs. 1,000 and interest on it and for the Rs. 250 damages provided for by Exhibit A. Defendant pleaded Exhibit I in defence. The District Munsif upheld the plea and dismissed the suit; but the District Judge reversed that decree and gave plaintiff a decree for his money. The defendant has appealed to us and has urged that Exhibit I constituted a valid discharge of the plaint debt.