In re The Insolvency Of Samsudeen

1914 Present: Lascelles C. J. and De Sampayo A. J.

In re THE INSOLVENCY OF SAMSUDEEN

8 D. C. Colombo, 2, 537.

Frivolous and vexatious defence-" Within six months next preceding of the. filing of the petition "-What is to be. deemed the date of the offence ?

Obiter, per Lascelles C. J. -" I am bound to say that I feel a good deal of difficulty in accepting the proposition that the offence of raising a false and frivolous defence must be taken from the date of the judgment in the action, and not from the filing of the answer. " A defence which is disbelieved by the Court is not necessarily " frivolous and vexatious " within the meaning of section 151 (7).

THE facts are set out in the judgment of the District Judge (H. A. Loos, Esq. ): -

Only one of the insolvent's creditors gave notice of opposition to the grant of a certificate of conformity to him, but that notice wag not given three clear days before the date of the certificate meeting, so that the notice must be disregarded.

The insolvent was sued in the action No. 35, 063 of this Court for the recovery of a sum of Rs. 5, 400 in respect of certain machinery alleged to have been purchased by him. He filed answer denying the purchase, and on April 15, 1913, judgment was entered against him for the amount claimed, with costs.

The insolvent did not appeal against that judgment, but on April 30, 1913, declared himself insolvent.

The question is, whether the insolvent has not been guilty of an offence under sub-section (7) of section 151 of the Ordinance No. 7 of 1853.

It wag not contended by his counsel that the defence raised by the insolvent in the action No. 35, 063 was not vexatious and frivolous, or that the creditor had not been put to unnecessary expense-in view of the finding in that action, such a contention could scarcely have been put forward with any success-but he contended that the offence, if any, had been committed longer than six months before the filing of the petition of sequestration of his estate by the insolvent, and that therefore he had not been guilty of the offence referred to in section 151 (7) of the Ordinance.

His contention was that the offence, if any, must be taken to have been committed when he refused to accept delivery of the machinery, and he relied on the case, In re Insolvency of Silva, D. C. Kalutara, 136, 1 in support of his contention.

The authority referred to appears to me to be against the insolvent's contention; for it was held in that case that the offence must be deemed to have been committed upon the date of the judgment deciding the facts upon which the offence is based.

It was held in that case that the point of time at which it is judicially determined that the expense, referred to in section 151 (7) of the Ordinance, has been caused to a creditor is that at which it should be held that the offence has been committed.

Now, in the action No. 85, 068, it was held on April 15, 1913, that the defence raised by the insolvent was practically false-so that that was the date on which the offence " must be deemed to occur, " and that was the date on which it was judicially determined that unnecessary expenses had been caused to the creditor.

So that the petition for sequestration of his estate having been filed by the insolvent two weeks after that date, it appear? to me that he is clearly guilty of the offence under section 151 of the Ordinance, and therefore disentitled to a certificate of conformity.

I decline to award him a certificate.

The insolvent appealed.

Bawa, K. C., for the appellant. -The offence referred to by the District Judge was committed prior to six months of the filing of the petition of sequestration. The offence of filing a false and frivolous defence must be reckoned from the filing of the answer. Counsel cited Ex parte Johnson 2 Vanderstraaten's Reports 2, In re the Insolvency of Silva l. The District Judge in case No. 35, 068 does not sa

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