1999 Supreme(SC) 1032

1999(8) Supreme 72
SUPREME COURT OF INDIA
(From Kerala High Court)
Dr. A.S. Anand, CJI., S. Rajendra Babu & R.C. Lahoti, JJ.
Thampanoor Ravi -Appellant
versus
Charupara Ravi & Ors. -Respondents
Civil Appeal Nos. 7395-7396 of 1997
With
Civil Appeal No. 8361 of 1997
Decided on 15-9-1999
Counsel for the Parties :
For the Appearing Parties : R.F. Nariman, Sr. Advocate, E.M.S. Anam, Fazlin Anam, C.N. Sreekumar, P. Sureshan, B.V. Deepak, Ms. Baby Krishnan, Advocates.

IMPORTANT POINTS
1. A person does not become undischarged insolvent within the meaning of Article 191(1)(c) of the Constitution unless he has been adjudged insolvent and is not discharged by the Court under the Insolvency Act.
2. Election Court hearing election petition cannot adjudicate whether a returned candidate was undischarged insolvent or not.
3. Special expression of insolvent contained in the Sale of Goods Act cannot be imported into the Representation of the People Act and the expression undischarged insolvent should not be understood de hors the Insolvency Act.

Headnote:(i) Representation of People Act, 1951-Section 100 - Constitution of India-Article 191(1)(c)-Setting aside of election-Disqualification of undischarged insolvency-Election Court s jurisdiction to adjudicate question of insolvency-Article 191(1)(c) does not contemplate mere impecuniousity or incapacity of a person to repay one s debts but he should not only be adjudged insolvent but also remain undischarged-Definition of insolvent in Sale of Goods Act cannot be imported into Representation of People Act - Expression undischarged insolvent should not be understood dehors Insolvency Act in a general sense-Election Court which has no jurisdiction to entertain insolvency petition cannot adjudicate question of insolvency while hearing election petition-A person does not become undischarged insolvent unless he has been adjudged insolvent and is not discharged by Court under Insolvency Act.

       Held : In State of Kerala, the Provincial Insolvency Act is applicable. Under Section 3 of the Insolvency Act, the District Court shall be the court having jurisdiction under the Act unless by a notification in the official gazette any court subordinate to the district court is invested with such jurisdiction and it shall have concurrent jurisdiction with the District court and a court of small causes shall be deemed to be subordinate to the district court for the purposes of this Section. Under Section 4 of the Insolvency Act, the court shall have full power to decide all questions whether of title or property or of any nature whatsoever, and whether involving matters of law or of fact, which may arise in any case of insolvency coming within the cognizance of the court, or which the court may deem it expedient or necessary to decide for the purpose of doing complete justice of making a complete distribution of property in any such case. Under Section 7 of the Insolvency Act, a petition for adjudication could be filed by a creditor or by a debtor and the court may on such petition adjudge him an insolvent. The Insolvency Act is a complete code and determination of all questions regarding insolvency including a question as to whether (1) a person is an insolvent or not, or (2) an insolvent be discharged or not and subject to what conditions, can be decided by the court constituted under that Act alone. It is only when exceptions are carved out as is done in the case of Section 2(8) of the Sale of Goods Act any other court or authority can decide such questions. (Paras 9 & 10)

       The scheme of the provisions of the Insolvency Act, the exclusive jurisdiction to deal with any question relating to insolvency could be adjudicated upon only by the court constituted under that Act. In such a situation, it would not be possible to hold that the High Court had, while dealing with an election petition, jurisdiction to decide a question as to whether a person is an undischarged insolvent or not. Admittedly, in this case, there is no such adjudication. Hence the High Court could not declare the appellant to be an "undischarged insolvent". (Para 12)

       Under what circumstances and subject to what limitations a person could be declared to have incurred disqualification is a matter of policy of law and the courts have cautioned themselves by stating that right to vote, right to elect or contest an election is a creature of statute and circumscribed by the limitations contained therein. Therefore, as long as the Constitution or the R.P. Act indicates in clear terms as to what its policy is, it would not be open to a court to interpret such a provision by trying to find out what the intent could be by ignoring the actual expressions used. Therefore, the supposed scheme of the provisions would not afford sufficient guidance to take the view that the expression "undischarged insolvent" should be understood as meaning an insolvent who is a person who is in impecunious circumstances as is unable to repay the debt. (Para 15)

       Even though Article 191(1) of the Constitution does not include declaration by an insolvency court, but by reason of expression used that he is an "undischarged insolvent" it clearly indicates that he could become "discharged" only in terms of the provisions of the insolvency Acts and not otherwise. It is implicit in the expression "undischarged insolvent" that a person does not become so unless he has been adjudged insolvent and is not discharged by the court under the insolvency Acts. The expression "undischarged insolvent" has acquired a particular legal connotation and such expression cannot be used otherwise than in terms of the insolvency enactments. (Para 16)

       Article 191(1)(c) does not contemplate mere impecuniousity or incapacity of a person to repay one s debts but he should not only be adjudged insolvent but also remain undischarged. Such a contingency could only arise under insolvency law. Article 191(1)(c) refers to disqualifications of a person from getting elected to State Legislature. The conditions for disqualification cannot be enlarged by importing to it any meaning other than permissible on strict interpretation of expressions used therein for what we are dealing with is a case of disqualification. Whenever any disqualification is imposed naturally the right of a citizen is cut down and in that event a narrow interpretation is required. Therefore, the liberal view taken by the learned Judge to the contrary does not appear to be correct. (Para 18)

       Under the Sale of Goods Act, a special definition of the expression insolvent had to be given to the effect that a person is said to be insolvent who has ceased to pay his debts in the ordinary course of business, or cannot pay his debts as they become due, whether he has committed an act of insolvency or not, and the definition is declaratory in character. Question of insolvency of a buyer is of considerable importance in the context of the seller s lien. It is in special context a meaning is given to the expression insolvent even though a person had not been adjudged an insolvent in the Insolvency Act to be insolvent for the purposes of the Act. That definition cannot be imported into the R.P. Act. Redundancy and tautology cannot be attributed to the Legislature. When the Legislature has used the expression "undischarged insolvent" that expression must be given its full meaning. A person on being adjudged insolvent remains so unless discharged in terms of the provisions of Section 41 of the Insolvency Act, either absolutely or conditionally, or in the absence of annulment as contained in Section 35 of the Insolvency Act. In ascertaining the meaning of an expression used in a statute, certain norms are adopted. If the legislature has used an expression which has acquired a technical meaning and such expression is used ordinarily in the context of a particular branch of law, it must be assumed that because of its constant use the legislature must be deemed to have used such expression in a particular sense as is understood when used in the similar context. If an expression has acquired a special connotation in law, dictionary or general meaning ceases to be helpful in interpreting such a word. Such an expression must be given its legal sense and no other. If the expression undischarged insolvent has acquired a special meaning under the law of insolvency, we must understand that that is the meaning that is sought to be attributed to the expression used in Article 191(1)(c) of the Constitution. The expression undischarged insolvent in Article 191(1)(c) should not be understood de hors the Insolvency Act in a general sense. (Paras 19, 20, 21 & 22)

       (ii) Constitution of India-Article 191(1)(c)-Disqualification to be a member of legislature- Undischarged insolvent -Meaning of-Article 191(1)(c) does not contemplate mere impecuniousity or incapacity of a person to repay ones debts but he should not only be adjudged insolvent but also remain undischarged-Expression undischarged insolvent should not be understood de hors Insolvency Act in general sense-Definition of insolvent in Sale of Goods Act cannot be imported into Representation of People Act-A person cannot be said to be undischarged insolvent unless he has been adjudged insolvent and is not discharged by Court under Insolvency Act. (Paras 12, 16, 18, 20, 21 & 22)

       (iii) Representation of People Act, 1951-Section 123-Corrupt practice-Allegation that returned candidate procured rum from military canteen and supplied to voters and thus procured votes in his favour-Further allegation he as a sitting MLA by misusing his position obtained or procured assistance of persons in service of Government to further prospect of his election and used Government Vehicle for election propaganda- High Court holding that allegation not proved with evidence-Held, on facts, High Courts judgment could not be interfered with. (Paras 23 & 26)