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CALCUTTA HIGH COURT
In Re: Bithal Dass Kalla - Appellant
Decided On : 17-01-1908
Insolvency - Insolvency Act - Sections 9 - Adjudication of insolvency requires a duly verified petition, not a rule to show cause
Fact of the Case:
The case involves a rule obtained by Baymull and Amlock Chand calling upon Bithal Das to show cause why he should not be adjudged to have committed an act of insolvency pursuant to the provisions of the Act for the relief of Insolvent Debtors in India.
Finding of the Court:
The court found that the usual way of obtaining an adjudication of a person as insolvent is by petition to the court, and the adjudication order made thereon is served on the insolvent. The application in the present case was made on a rule, not a duly verified petition as required under Section 9 of the Insolvency Act.
Issues: Whether the court can adjudge a person as insolvent based on a rule to show cause, or if a duly verified petition is required under the Insolvency Act.
Ratio Decidendi: The court held that the requirement of a duly verified petition under Section 9 of the Insolvency Act is a condition precedent to the court granting an order of adjudication of insolvency. An application made by way of a rule to show cause does not meet this requirement.
Final Decision: The court discharged the rule with costs, as the application was made improperly by way of a rule instead of a duly verified petition as required by the Insolvency Act.
JUDGMENT
Fletcher, J. - This is a rule obtained by Baymull and Amlock Chand calling upon one Bithal Das to show cause why he should not be adjudged to have committed an act of insolvency pursuant to the provisions of the Act for the relief of Insolvent Debtors in India. Now, the usual way of obtaining an adjudication of a person, as is well known, is by petition to the Court and the adjudication order made thereon is served on the insolvent. What should be done by the creditor is set out in sec. 9 of the Insolvency Act which says ?whereupon and upon such petition being duly verified, it shall be lawful for the Court to adjudge that such person has committed an act of insolvency.? That the application be by a petition duly verified is a condition precedent to the Court granting the order. The application in the present case is not made on such a petition but on a rule. I think that this rule must have been obtained per incuriam and I discharge the rule with costs.
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