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CALCUTTA HIGH COURT
Fletcher, J.
In Re: Jewandas Jhawar - Appellant
Decided On : 30-05-1912
Insolvency - Presidency Towns Insolvency Act, 1909 - Sections 17, 126 - Provincial Insolvency Act, 1907 - Section 50 - The court held that the property of the insolvent vests in the Official Assignee under Section 17 of the Presidency Towns Insolvency Act, 1909, regardless of the location of the assets, and ordered the Additional District Judge to act in aid under Sections 126 and 50 to make over the assets to the Official Assignee.
Fact of the Case:
This is an application under Section 126 of the Presidency Towns Insolvency Act of 1909 asking for an order that the District Court of Delhi should be asked to act as provided by Section 126 and Section 50 of the Provincial Insolvency Act of 1907 to make over the sale proceeds of certain properties attached at Delhi to the Official Assignee.
Finding of the Court:
The court held that the Additional District Judge was clearly in error in his opinion that Section 17 of the Presidency Towns Insolvency Act does not apply to the mofussil. The court stated that the Presidency Towns Insolvency Act is an Act of the Legislative Council of the Governor-General and purports to vest the property of the insolvent wherever situate in the Official Assignee, and that Section 17 vests the property of the insolvent in any part of British India in the Official Assignee.
Issues: Whether the property of the insolvent vests in the Official Assignee under Section 17 of the Presidency Towns Insolvency Act, 1909, regardless of the location of the assets.
Ratio Decidendi: The court relied on the Privy Council decision in Official Assignee, Bombay v. Registrar, Small Cause Court Amritsar, which held that the effect of the Presidency Towns Insolvency Act was to vest the property in the Official Assignee notwithstanding the local legislation of the Punjab Council.
Final Decision: The application is allowed, and an order to act in aid is made under Section 126 of the Presidency Towns Insolvency Act and Section 50 of the Provincial Insolvency Act.
JUDGMENT
Fletcher, J. - This is an application u/s 126 of the Presidency Towns Insolvency Act of 1909 asking for an order that u/s 126 and Section 50 of the Provincial Insolvency Act of 1907 the District Court of Delhi should be asked to act as provided by those sections and to make over the sale proceeds of certain properties attached at Delhi to the Official Assignee. It appears that the Additional District Judge is of opinion, that Section 17 of the Presidency Towns Insolvency Act does not apply to the mofussil. In my opinion the Additional District Judge is clearly in error in that opinion. The Presidency Towns Insolvency Act is an Act of the Legislative Council of the Governor-General, and purports to vest the property of the insolvent wherever situate in the Official Assignee. Clearly, therefore, Section 17 vests the property of the insolvent in any part of British India, in the Official Assignee. The wording is substantially the same as that of the Imperial Statute which was repealed by the present Act. The matter is covered by authority; for the Privy Council in the case of Official Assignee, Bombay v. Registrar, Small Cause Court Amritsar I.L.R (1910) Calc. 418; L. R. 37 I. A. 86 held that the effect of that Act was to vest the property in the Official Assignee notwithstanding the local legislation of the Punjab Council. It is clear that the assets in the Delhi Court belong to the Official Assignee. Why the Additional District Judge refused to follow the clear words of Section 17, I do not understand. Perhaps if he is asked to act in aid u/s 50 of the Provincial Insolvency Act and Section 126 of the Presidency Towns Insolvency Act, he will see his way to make over the assets to the Official Assignee, who alone can grant a discharge therefor. The application is allowed, and an order to act in aid is made u/s 126 of the Presidency Towns Insolvency Act and Section 50 of the Provincial Insolvency Act.
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