SAILENDRA KRISHNA ROY Vs. RASHMOHAN SHAHA

JUDGEMENT

(1.) This case arises out of an order made by my learned brother Pearson, J., refusing to interfere with an order made by the Registrar in Insolvency refusing to review an order made by him for the attendance of certain persons to be examined under Section 36, Presidency Towns Insolvency Act, 3 of 1909. The merits of the case and the necessity for holding the enquiry proposed seem plain enough ; but the point which is relied upon on , behalf of the appellant is a technical point. Section 36 begins in this way: The Court may, on the application of the Official Assignee or of any creditor who has proved his debt, at any time after an order of adjudication has been made, summon before it in such manner as may be prescribed the insolvent or any person known or suspected to have in his possession any property belonging to the insolvent, or supposed to be indebted to the insolvent or any person whom the Court may deem capable of giving information respecting the insolvent, his dealings or property ; and the Court may require any such person to produce any documents in his custody or power relating to the insolvent, his dealings or property.

(2.) On that it appears that this insolvency is a very old one the order of adjudication having been made on 9 August 1921. The creditor on whose application the order was made, in the form prescribed for affidavit and proof of debt had proved his debt about seven years ago. Various things happened. He was treated as a creditor while certain negotiations for composition were going on he was a member of the committee of inspection and so on. It does not appear that Section 25, Schedule 2, Presidency Towns Insolvency Act, has been complied with by the Official Assignee and it further appears that so far as the insolvency rules of the Court go no time is limited within which the Official Assignee is obliged to comply with the provisions of that rule. The Official Assignee does not question the proof of debt, but the proof of debt itself is not formally and in writing admitted. In these circumstances it is said that the phrase creditor who has proved his debt" in 8. 36 does not include this creditor because it is said that until the claim is formally admitted the creditor is not a creditor who has proved his debt. That proposition is laid down in the decision of Greaves, J., reported in Abdul Samad, In re A.I.R. 1923 Cal. 305 and the learned Judge definitely holds that the phrase that: a creditor who has proved his debt means not merely a creditor who has lodged proof of his debt but a creditor whose proof has been admitted by the Official Assignee under the provisions contained in Section 25, Schedule 2, Insolvency Act.

(3.) I am of opinion that the decision of Greaves, J., is erroneous and ought not to be adhered to. The ordinary meaning in bankruptcy of a creditor who has proved his debt" is a creditor who has done all that the Act requires the creditor to do and in Schedule 2, English Act, this is made perfectly clear because the Section 2, Schedule 2 says that: a debt may be proved by delivering or sending through this post in a prepaid latter to the Official Receiver or if a trustee has beer appointed, to the trustee, on affidavit verifying the debt.