In Re The Insolvency Of Nadarajah

Present : Bertram C.J. and De Sampayo J.  1922.

 In re the Insolvency of NADARAJAH.

113-D. C. Colombo, 2,979.

May opposing-creditor call insolvent as witness to prove hit charges at the certificate meeting !-Power of Supreme Court to set aside a certificate-Insolvency Ordinance, ss. 89 and 129.

At the certificate meeting the creditor opposing the allowance of a certificate cannot call the insolvent into the box to examine him to prove his charges against the insolvent.

THE second sitting was closed on June 28, 1921, and certificate meeting was fixed for July 26, 1921. The appellant gave due notice on July 21, 1921, that he would oppose the granting of the certificate on certain grounds which he specified. On the day appointed for the certificate meeting, the appellant's Counsel moved to examine the insolvent who was present in Court in regard to the various grounds on which the appellant based his opposition. The District Judge (A. Beven, Esq.) held that as the second sitting was closed, the insolvent could not be examined till the opposing-creditor had led evidence to prove the charges framed against him; and that, then, the insolvent can be called to rebut the charges brought against him.

The opposing-creditor appealed.

Samarawickreme, for the appellant.

Jayawardene, K.C. (with him Alwis and Siriwardene), for the respondent.

1922. February 7, 1922. BERTRAM C.J.-

This is an appeal against an order of the District Court of Colombo refusing an application made on behalf of the opposing-creditor in an insolvency case for permission to examine the insolvent on the occasion of his application for a certificate. The learned Judge refused that application. He said: " I hold that as the last sitting was closed, the insolvent cannot be examined now, till the opposing-creditor has led evidence to prove the charges framed against him. He can, in my opinion, only be called to rebut these charges." The only thing before us is an appeal against that order, and we can only say that that order is absolutely correct. The Insolvency Ordinance makes various provisions for the examination of the insolvent debtor in the course of the proceedings. But it is specifically declared in section 89 that the last examination of the insolvent shall be the second public sitting of the Court; and this second public sitting was over long before this application was made. Moreover, the learned Judge was acting in entire accordance with a previous unreported decision of this Court. The opposing-creditor appears to have been very unfortunate in the legal advise which he received in the course of the proceedings. He had, it seems to me, repeated opportunities of putting his possibly legitimate grievances forward, and of submitting the bankrupt to a searching examination. Those who appeared ,for him did not think it necessary to take advantage of those opportunities, and even when the insolvent was examined, he was not cross-examined on behalf of the opposing-creditor. There is no doubt that on that ground he changed his legal advisers. But the subsequent history appears to have been no more fortunate, because his case was staked upon a legal point, namely, his claim to examine the insolvent at that stage of the proceedings. Having so staked his case, those who represented him, although they appear to have been in Court at the time when the Judge proceeded to inquire into the question of the issue of a certificate, or, at any rate, on the same day, did not bring any evidence forward, and, when the order for the issue of the certificate was finally made, did not appeal against it. It seems to me that we cannot do anything more in this case, than give our judgment in the appeal.

Mr. Samarawickreme, however, has invited us to go further, and to act under section 129, which gives a special power to- the Supreme Court, within six months after a certificate has been issu

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