PRESIDENCY-TOWNS INSOLVENCY (BENGAL AMENDMENT) ACT, 1936

Act No. 18 of 1936

11th February, 1937

An Act to amend the Presidency-towns Insolvency Act, 1909, in its application to the Presidency-town of Calcutta. Whereas it is expedient to amend the Presidency-towns Insolvency Act, 1909 (III of 1909), in its application to the Presidency-town of Calcutta in the manner hereinafter appearing; And Whereas the previous sanction of the Governor General has been obtained under sub-section (3) of section 80A of the Government of India Act (5 & 6 Geo. V, c. 61; 6 & 7 Geo. V, c. 37; 9 & 10 Geo. V, c. 101) to the passing of this Act; It is hereby enacted as follows :-

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S.1 Short title and commencement

• (1) This Act may be called the Presidency-towns Insolvency (Bengal Amendment) Act, 1936.
• (2) It shall come into force on such date 1 as the 2 [State Government] may, by notification in the 3 [Official Gazette], appoint.

1. The Act came into force on the 15th March, 1937, vide Notification No. 1164-J., dated the 17th February, 1937, published in the Calcutta Gazette, dated the 25th February, 1937, Pt. I, p. 369.

2. The words "Provincial Government" were originally substituted for the words "Local Government" by paragraph 4(1) of the Government of India (Adaptation of Indian Laws) Order, 1937, and thereafter the word "State" was substituted for the word "Provincial" by paragraph 4(2) of the Adaptation of Laws Order, 1950.

3. These words within square brackets were substituted for the words "Calcutta Gazette ", by paragraph 4(2) of the Government of India (Adaptation of Indian Laws) Order, 1937.

S.2 Application of Act

The Presidency-towns Insolvency Act, 1909, hereinafter referred to as the said Act, shall, in its application to the Presidency-town of Calcutta, be amended in the manner hereinafter provided.

S.3 Amendment of section 77 of Act III of 1909

In section 77 of the said Act,-

• (a) Rep. by the Bengal Repealing and Amending Act, 1938 (Ben. Act I of 1939).
• (b) in sub-section (1A) for the figures "112" the figures and letter "112A" shall be substituted; and
• (c) for sub-section (3) the following sub-section shall be substituted, namely:-

  "(3) Notwithstanding anything contained in sub-section (1), the person substantively or temporarily holding the office of official assignee under this Act for the High Court 1 [at Calcutta] immediately before the commencement of the Presidency-towns Insolvency (Bengal Amendment) Act, 1936 ( Ben. Act XVII of 1936), shall, without further appointment for that purpose, become the official assignee, substantive or temporary, as the case may be, as if appointed by the 2 [State Government] under sub-section (1)."

1. The words within square brackets were substituted for the words "at Fort William" by paragraph 3 of, and the Eleventh Sche

S.4 Substitution of new sections 81 and 81B for section 81

For section 81 of the said Act, the following sections shall be substituted, namely:-

"81. Administrative control over official assignee and deputy official assignee.

The official assignee and any deputy official assignee shall, in the discharge of their functions under this Act, be under the administrative control of the 1 [State Government] except in so far as they are required by or under this Act to act under the control or direction of the High Court.

81A. Rep. by the Bengal Repealing and Amending Act, 1938 (Ben. Act I of 1939).

81B. (1) The 1 [State Government] may determine the number, Establishment of designations and grades of officers and servants official assignee. (other than employees who are paid by the day) whom the official assignee may employ for the purposes of this Act and the amount and nature of the salary, allowances and other remuneration to be paid to each such officer and servant.

(2) Rep. by the Bengal Repealing and Amend

S.5 Amendment of section 82

Section 82 of the said Act shall be renumbered as sub-section (1) of that section and after that sub-section as so renumbered the following sub-sections shall be added, namely:-

"(2) The revenues of the 1[State Government] shall be liable to make good all sums which the official assignee is required by order of the Court to pay under sub-section (1) in respect of any misfeasance, neglect or omission which occurred after the commencement of the Presidency-towns Insolvency (Bengal Amendment) Act, 1936 ( Ben. Act XVIII of 1936).

(3) Nothing in sub-section (2) shall prevent the 1[State Government] from recovering any sum paid by the 1[State Government] under that sub-section from the person who was holding the office of official assignee when the misfeasance, neglect or omission occurred."

S.6 Insertion of new sections 82A, 82B and 82C

After section 82 of the said Act the following sections shall be inserted, namely :-

"82A. Liability of State Government for costs in legal proceedings, etc.

Where the official assignee has incurred, whether before or after the commencement of the Presidency-towns Insolvency (Bengal Amendment) Act, 1936, in the matter of any insolvency-

• (a) any costs in legal proceedings taken by him under the direction of the Court, or
• (b) any civil liability, bona fide in the discharge of his duties,

the revenues of the 1 [State Government] shall be liable for the payment of such costs or liability, in so far as the assets realized by the official assignee in respect of such insolvency are insufficient to meet such costs or liability.

82B. Certain liabilities not to be incurred without the express direction of the Court

Where an insolvent's estate has no available assets, the official assignee shall not incur any costs, charges or ex

S.7 Insertion of new section 84A

After section 84 of the said Act the following section shall be inserted, namely :-

"84A. (1) The official assignee shall maintain an Account of in the prescribed manner and shall pay into such official assignee, account, after making any prescribed investments and proceeds of deductions- investments.

• (a) all monies received by him in the realization of insolvents' estates, and
• (b) any other sums that may be prescribed.

(2) Subject to the control of the 1 [State Government], whenever the cash balance standing to the credit of the said account is, in the opinion of the official assignee in excess of the amount which is required for the time being to meet demands in respect of insolvents' estates, or to make the payments required under section 122 or any other payments that may be prescribed, the official assignee shall invest such excess in the prescribed manner.

(3) Subject to the control of the 1 [State Government], whenever any pa

S.8 Amendment of section 112

In section 112 of the said Act-

• (a) in sub-section (1), after the word "rules" the words, figures and "letter" except in regard to those matters to which section 112A applies" shall be inserted;
• (b) in sub-section (2)-
  • (i) in clause (a), after the word "percentages" the words "other than fees and percentages chargeable by the official assignee" shall be inserted;
  • (ii) clauses (b), (d), (e), (l), (g), (h), (i) and (s) shall be omitted.

S.9 Insertion of new section 112A

After section 112 of the said Act the following section shall be inserted, namely :-

"112A. Power of State Government to make rules.

(1) The 1 [State Government] may make rules for carrying into effect the objects of this Act in regard to those functions of the official assignee which are discharged under the administrative control of the 1 [State Government].

(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for and regulate-

• (a) the fees and percentages to be charged by the official assignee for and in respect of proceedings under this Act and the manner in which the same are to be collected and accounted for;
• (b) the receipts, payments and accounts of the official assignee;
• (c) the audit of the accounts of the official assignee;
• (d) the security to be given by the official assignee and his deputy or deputies;
• (e) the distribution of work between the offici
  

S.10 Amendment of section 113

In section 113 of the said Act, for the words "of this Part" the words and figures "of section 112" shall be substituted.

S.11 Amendment of section 125

Section 125 of the said Act shall be renumbered as sub-section (1) of that section and after that sub-section as so renumbered the following sub-sections snail be added, namely :-

"(2) The official assignee shall transfer and pay to such authority and in such manner and at such times as may be prescribed in this behalf all fees and percentages received by him after the commencement of the Presidency-towns Insolvency (Bengal Amendment) Act, 1936 ( Ben. Act XVIII of 1936), and the same shall be carried to the account and credit of the 1 [State Government].

(3) Any percentages or commission or other remuneration received by the official assignee if appointed as a trustee in a composition or as agent or another official assignee shall be similarly so transferred and paid by him."

1. See foot-note 3 on p. 57, ante.

S.12 Amendment of rule 18 in the Second Schedule

In rule 18 in the Second Schedule to the said Act, for the words and brackets "(unless it is otherwise ordered)" the words and brackets "(unless it is otherwise ordered for reasons to be recorded in writing)" shall be substituted.