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1936 DIGILAW 401 (CAL)

Nagar Mirdha v. Gokuleswar Biswas

1936-11-12

body1936
JUDGMENT 1. This is an appeal against the order of the Additional District Judge of Faridpur, dated the 9th of July, 1935, adjudging the Appellants insolvents under the Provincial Insolvency Act at the instance of the Respondent, who is a creditor of the Appellants. In the petition for insolvency three acts of insolvency were alleged by the Respondent:-(1) That the Appellants gave notice to the Respondent on the 25th Aswin, 1341 B. S., corresponding to 12th October, 1934, that they had suspended payment, (2) That the Appellants had removed all their movable properties from their dwelling house on the 16th Aswin, 1341, corresponding to the 3rd October, 1934 and (3) That the Appellants were about to make a benami transfer of their immovable properties. The Appellants denied all these allegations of the Respondent in their petition of objection. In order to prove that the Appellants committed the acts of insolvency as alleged in his petition, the Respondent examined himself and two witnesses. In his examination-in-chief the Respondent said that on the 25th Aswin last, the Appellants told him that the Appellants would not pay the debt and asked him to go to Court. He also stated that the Appellants sold some movables and removed others and were about to make benami transactions in the names of their wives and sons In cross-examination he had to admit that the Appellants only sold jute and onions and other movables which they had grown for sale. He also admitted in cross-examination that the Appellants were well off before and were now in pecuniary difficulties owing to economic distress in the country and that the market price of the things had fallen. The learned District Judge has not accepted the evidence of the Respondent so far as it related to the second and third acts of insolvency alleged by him and we are not prepared to accept his evidence in this connection, as it is not corroborated by any other evidence. So far as the first act of insolvency is concerned, even if his evidence be accepted, it would amount to this that the Appellants refused to repay the debt of the Respondent only. Sec. 6 (g) of the Provincial Insolvency Act, however, contemplates suspension of the payment of the entire debt of the debtor and not simply the debt due to a particular creditor. Sec. 6 (g) of the Provincial Insolvency Act, however, contemplates suspension of the payment of the entire debt of the debtor and not simply the debt due to a particular creditor. We are not prepared to believe the Respondent's story that the Appellants told him that they would not pay his debt. The evidence of the two witnesses examined by him is not reliable. They deposed to facts which the Respondent himself did not venture to state in his evidence. In this state of the evidence it would not be safe to hold that the Appellants really gave notice to the Respondent that they had suspended payment of their debts. One of the Appellants gave his evidence before the learned Judge and his evidence clearly indicates that he did not refuse to pay the debt but that he was unable to pay his debt on account of the economic distress in the country. We are therefore unable to agree with the learned Judge that the Respondent has succeeded in proving that the Appellants had committed the act of insolvency alleged by him. The result, therefore, is that this appeal is allowed, the order of the learned District Judge adjudging the Appellants as insolvents is set aside and the application presented by the Respondent for adjudging the Appellants as it solvents is dismissed. 2. The Appellants will get their costs in this appeal-hearing-fee being assessed at two gold mohurs. The receiver is directed to make over the possession of the properties of the Appellants if he has already taken possession.