R VISWANATHA CHETTY Vs. OFFICIAL ASSIGNEE OF MADRAS

JUDGEMENT

(1.) The question raised in this appeal is whether one K. Subbaraya Chetty was properly adjudicated an insolvent. The appellant is a creditor of the debtor and it appears that on the 26 of January, 1929, he obtained a decree for Rs. 10,000 against him. Two days later, that is, on the 28 January, the debtor filed his own petition to be adjudged an insolvent, and he was adjudicated insolvent on the same date. In para. 12 of his petition the debtor made the following statement: The liabilities of the petitioner amount to about Rs. 55,000 but many of the debts have to be carefully enquired into and investigated and assets which the petitioner is likely to get as his half share in the properties left by his father will be about Rs. 40,000 and the same is not sufficient to discharge the liabilities.

(2.) On the 18 February the appellant moved the Court to annul the adjudication, alleging in his affidavit in support of motion that the adjudication was without the jurisdiction of the Court inasmuch as the debtor was "a permanent resident" of Tiruvattiyur. On the 21 February the debtor filed his schedule in which he declared that on the date of the order of adjudication his liabilities were Rs. 49,100 and his assets were estimated to produce Rs. 76,550. On the 8th March the debtor filed a counter-affidavit in which, in denial of the allegation in the appellant's affidavit, he asserted that he had been "a permanent resident of Madras living at No. 47, Erulappan Street, Madras" and that it was owing to warrants obtained by his creditors that he was temporarily staying at Tiruvattiyur. In reply to this affidavit the appellant, on the 15th March, filed a further affidavit in which, in para. II, he submitted that, according to the debtor 's admission in his schedule, his assets exceeded his liabilities and that he should not have been adjudicated an insolvent. The learned judge dismissed the appellant's motion upon the ground that admittedly the insolvent had two houses in Madras and had lived there within a year before the presentation of the petition, and he thought it unnecessary to hear evidence that the debtor had been in occupation of the houses. He declined to consider the other objection, because the appellant had not raised it in his affidavit. Two points have been argued before us in appeal: firstly, that the evidence establishes that for more than a year before the presentation of the petition the debtor "has ordinarily resided" at Tiruvattiyur outside the limits of the High Court's insolvency jurisdiction; and, secondly, that the debtor's adjudication having been obtained upon an untrue allegation as to his inability to pay his debts ought to be annulled.

(3.) It appears from the documentary evidence tendered by the appellant that from July, 1926 to April, 1928, letters and documents were being addressed to the debtor at his house No. 11, South Mada Street, Tiruvattiyur. The debtor in his affidavit has explained that this was only a temporary residence for the purpose of keeping away from the warrants of his creditors. That may very well be the explanation, but the debtor's motive in taking up his residence in a particular place cannot affect the question whether he is to be deemed to have "ordinarily resided" there; and in our view the evidence justifies the conclusion that for more than a year before January, 1929, Tiruvattiyur is the place where the debtor "has ordinarily resided".