J. N. BHATT, J. ( 1 ) THE present appeal is directed against the judgment and order passed by the learned Judge of the City Civil Court, Ahmedabad in Insolvency petition No. 16 of 1965 by invoking the aids of the provisions of Sec. 75 of the Provincial Insolvency Act, 1920 ("act" for short hereinafter ). ( 2 ) THE material facts leading to the rise of the present appeal may be narrated at the outset so as to appreciate the merits of the appeal and challenge against it. ( 3 ) THE present appellant is the original petitioner who instituted the aforesaid insolvency petition against the present respondents, who are the original opponents. the parties are hereinafter referred to as "petitioner" and "opponents" respectively for the sake of convenience and brevity. ( 4 ) THE petitioner is a firm dealing with jaggery business. The said petition came to be filed by a creditor, the petitioner firm, against the opponents, contending that in the course of the business between the parties, a sum of Rs. 1,14,000. 00 had become due from the opponents to the petitioner as against which the opponents had paid to the petitioner a sum of Rs. 23,000. 00. Thus, the petitioner had contended that an amount of Rs. 91,000. 00 had remained unpaid towards the sale price of the goods sold. ( 5 ) THE petitioner further contended that the opponents have committed acts of insolvency. In that, it has been alleged that the opponent sold a bungalow belonging to opponent No. 1 with a view to defraud the creditors. It is also alleged that the opponents have suspended the payment of debts and opponent no. 3 firm had failed in its business and the opponents had paid 4 annas out of a rupe to their creditors with an intent to defeat or delay the creditors. It is also contended that the partners of opponent No. 3, Ishavaralal Harjivandas and Narottamdas Harjivandas had departed from the dwelling house and they secluded themselves so as to deprive the creditors of the means of communication with them. Thus, according to the contention of the petitioner, intention of the opponents is to delay and defeat the rightful claims of the creditors and such acts are sufficient enough to declare the opponents as insolvents. Thus, according to the contention of the petitioner, intention of the opponents is to delay and defeat the rightful claims of the creditors and such acts are sufficient enough to declare the opponents as insolvents. ( 6 ) THE opponents appeared and resisted the petition by filing a composite written statement at Ex. 33, controverting all the allegations. The trial Court raised the issues, at Ex. 48. After appreciating the facts and circumstances as well as the evidence on record, the learned City Civil Court Judge, Ahmedabad, was pleased of dismiss the petition. Being aggrieved by the said order, the original petitioner has now come up before this Court challenging its legality and validity. ( 7 ) THE learned Counsel for the appellant/original petitioner has contended that the transfer of the bungalow for Rs. 23,000. 00 on 6-6-1965 was with a view to defraud the creditors. There is no dispute about the fact that the opponents had sold off their bungalow. It is also true that the learned trial Court Judge failed to appreciate the date of sale. It is observed in the impugned judgment that the date of sale of the said bungalow has not been brought on record. This observation appears to be erroneous as pointed out by the learned Advocate for the petitioner Mr. Shah. He has drawn the attention of the Court to Ex. 52. It is an extract from the office of the Sub-Registrar. It is found in the said extract that the sale of the said bungalow took place on 6-7-1965. The petition came to be filed on 31-8-1965. However, the contention that the said bungalow was sold off by the opponents with a view to delay and defeat the creditors has not been proved. It is found from the evidence on record that the said bungalow was purchased for Rs. 25,000. 00 and it was sold with tenancy rights for a sum of Rs. 23,000. 00. It is also true that the purchaser of the said bungalow had accepted the vendor-opponents as the tenants in the said bungalow. Simply because the opponents sold off the said bungalow for Rs. 23,000. 00 retaining the possession in capacity of tenants would not ipso facto indicate an act of insolvency. 23,000. 00. It is also true that the purchaser of the said bungalow had accepted the vendor-opponents as the tenants in the said bungalow. Simply because the opponents sold off the said bungalow for Rs. 23,000. 00 retaining the possession in capacity of tenants would not ipso facto indicate an act of insolvency. There is no evidence on record to suggest that the bungalow was sold off by the opponents with tenancy rights for a lesser amount than what was the market value of the said bungalow and that the said act would tantamount to delay or defeat the claims of the creditors. So, the material ingredient to defraud the creditors insofar as the sale transaction of the bungalow is concerned, is absent and missing. The learned trial Court Judge, of course, failed to appreciate that fact that there is a record about the date of said transaction. However, his conclusion that there was no intention to defeat or delay the creditors is, fully, justified in the circumstances of the case. It may also be mentioned that it is apparent from the record that the consideration received by the opponents out of the sale of the said bungalow had also been defrayed and used for the payment of debts to the creditors. Thus, the sale proceeds of the said bungalow was utilised to pay the debts. This aspect, on the contrary runs counter to the contention that the transaction was entered into with a view to defeat the claims of the creditors. There is no force, therefore, in the first contention raised on behalf of the petitioner. ( 8 ) THE second contention raised on behalf of the petitioner by the learned counsel Mr. Shah is that the assignment of the actionable claim of Rs. 23,000. 00 for a sum of Rs. 15,000. 00, without evidence of difficulty in recovering it fully, would be an act of insolvency. There is no dispute about the fact that the assignment, as contended, was made. It is also an admitted fact that a sum of Rs. 23,000. 00 and odd was due to the opponents and one Shantilal Joitaram patel who happens to be once a partner of the petitioner firm had to pay the said amount to the opponents. There is no dispute about the fact that the assignment, as contended, was made. It is also an admitted fact that a sum of Rs. 23,000. 00 and odd was due to the opponents and one Shantilal Joitaram patel who happens to be once a partner of the petitioner firm had to pay the said amount to the opponents. It is also not in dispute that the said amount was paid to the petitioner and, therefore the petitioner has given credit to that amount out of its total dues. However, it is contended on behalf of the petitioner that the transfer of the said actionable claim of the value of Rs. 23,000. 00 for a sum of Rs. 15,000. 00 was with a view to defeat the claim of creditors and, therefore, the opponents had committed an act of insolvency. It is true that the opponents transferred and assigned the actionable claim of the value of Rs. 23,000/ - to a third party Kapurrai Kanji and Company and the entire amount realised had been paid by transfer to the firm of the petitioner. There is evidence on record to show that the opponents found to difficult in recovering the full amount of the said actionable claim. Opponent No. 1-Ishavarlal Harjivandas has clearly stated in his evidence that because there was difficulties in recovering the dues from said Shantilal Joitaram Patel, the claim of Rs. 23,000. 00 was settled and transferred for a sum of Rs. 15,000. 00. This part of the evidence of opponent no. 1 has not been challenged. It may also be mentioned that in a financial crisis or strains it may be difficult for opponents to recover full dues. Opponents were hard pressed. They had also to sell off their bungalow and, therefore, instead of waiting for recovery, thereof, fully, they transferred the actionable claim for a lump-sum of Rs. 15,000. 00 and the said amount was paid to the petitioner firm. Under the circumstances, it cannot be said, even for a moment, that the said action would constitute an act of insolvency. Therefore, the second contention raised by the learned Counsel Mr. Shah for the petitioner, must fail. ( 9 ) THE learned Advocate Mr. 15,000. 00 and the said amount was paid to the petitioner firm. Under the circumstances, it cannot be said, even for a moment, that the said action would constitute an act of insolvency. Therefore, the second contention raised by the learned Counsel Mr. Shah for the petitioner, must fail. ( 9 ) THE learned Advocate Mr. Shah for the petitioner has also argued that the opponents, with an intent to defeat or delay the creditors, started departing from their dwelling house and usual place of business and started remaining absent themselves from such places and also secluded themselves with a view to deprive the creditors and the means of communication. He has also invited the attention of the Court to the fact that the petitioners power of attorney holder Mr. Kapurrai had gone to the opponents residence as well as the place of business between 22-8-1965 and 31-8-1965 and the opponents were not available. Relying on the said evidence, it is contended that the intent of the opponents was to defraud the creditors by departing from their dwelling house and remaining absent from the place of business. It may be noted at this stage that opponent No. 1 has clearly stated in his evidence that the opponents were attending their place of business and they were available at their residence. It is also very clear from his evidence that the opponents were often meeting the power of attorney holder of the petitioner. Merely, because the power of attorney holder of the petitioner stated in his evidence that when he went to the opponents they were not available would not ipso dixit constitute an act of insolvency even if it is believed to be true. In fact, the petitioner has failed to prove that the opponents, with an intent to defeat or delay the claims of creditors departed or remained away from their dwelling house or from the place of business. There is also no evidence to prove that the opponents secluded themselves so as to deprive the creditors of the means of communication with them. There is also no evidence to prove that the opponents secluded themselves so as to deprive the creditors of the means of communication with them. The petitioner has not led any evidence of any person of the said locality where the opponents reside nor any evidence of any person from the trading or business community nor any convincing evidence to prove that the opponents departed from their dwelling house or usual place of business or that they secluded themselves with an intent to defeat or delay their creditors. Therefore, the finding of the learned trial Court Judge on this point is also fully justified. Therefore, the third contention raised by the learned Counsel Mr. Shah for the petitioner is, without substance and must be rejected. ( 10 ) THE petitioner filed the above Insolvency Petition under the provisions of Sec. 9 of the Act alleging that the opponents have committed acts of insolvency relying upon the provisions of Secs. 6 (1) (b) and 6 (1) (d) of the act. Section 6 of the Act prescribes the acts of insolvency. The maintainability of the insolvency petition is upheld by the trial Court. However, the trial court found that there was no proof to prove that the opponents who are debtors of the petitioner firm had, as such, committed any act of insolvency. The findings of the trial Court Judge are fully justified holding that the opponents have not committed any act of insolvency. In an insolvency petition, it is incumbent upon the petitioner to prove the intention of the debtor to delay and defeat the creditors. No doubt, the intention has to the gathered from the surrounding set of circumstances as direct evidence to prove such an intent is unobtainable. The petitioner has, totally, failed to prove the dishonest intention on the part of opponents. There is no creditworthy and reliable evidence to prove the intention to delay and defeat the creditors which is the lynch pin to declare a debtor insolvent. A debtor can be said to have committed an act of insolvency only when there is a proof of an intention to defeat or delay the creditors. There is no creditworthy and reliable evidence to prove the intention to delay and defeat the creditors which is the lynch pin to declare a debtor insolvent. A debtor can be said to have committed an act of insolvency only when there is a proof of an intention to defeat or delay the creditors. Not only that the petitioner has miserably failed to prove that the opponents have committed any act of insolvency but the circumstances emerging from the evidence on record would go to show that there was no such intention on part of the opponents. The petition came to be filed on 31-8-1965. The opponents had paid a sum of Rs. 15,000. 00 by transfer of the actionable claim to the petitioner-creditor only within a spell of eight days before 31-8-1965. There is ample evidence on record to show that the sale proceeds of the sale transaction of the residential bungalow sold out by the opponents on 6-7-1965 has been untilised for the purpose of payment to the creditors. Therefore, in the light of the facts and circumstances of the present case, it cannot be said even for a moment that the opponents had committed any act of insolvency. ( 11 ) THE learned Counsel Mr. Shah for the petitioner alternatively contended that the matter may be remanded to the trial Court for deciding the issue as to whether any fraudulent preference had been made or not by the opponents. This contention is also without any substance in the facts of the present case. The trial Court has examined this aspect and has clearly dealt with it in paragraph 11 of its judgment. In fact, there is no specific pleading on this point. Therefore, there was no specific issue on this point. Still, however, this aspect was seriously considered by the trial Court and found that there was no any instance of fraudulent preference. It is not the case that the trial Court has failed to consider any such instance on record. There is no reason as to why no evidence is led on this points. Therefore, no question would arise to remand the matter as contended on behalf of the petitioner before this Court. In the opinion of this court, there is no justification for remanding the matter to the trial Court as argued by the learned Advocate Mr. Shah for the petitioner. Therefore, no question would arise to remand the matter as contended on behalf of the petitioner before this Court. In the opinion of this court, there is no justification for remanding the matter to the trial Court as argued by the learned Advocate Mr. Shah for the petitioner. There is no reason or any point as to why the matter is sought to be remanded. The trial Court has categorically concluded, considering the evidence on record, that there is no any fraudulent preference exercised or practised by the opponents. Therefore, the final and alternative contention raised by the learned Advocate Mr. Shah for the petitioner must fail. ( 12 ) HAVING regard to the facts and circumstances narrated hereinbefore and the evidence emerging in the present case, the impugned judgment is required to be confirmed as there is no merit in the present appeal. ( 13 ) IN the result, this appeal is dismissed. Having regard to the circumstances, there shall be no order as to costs. .