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1999 DIGILAW 336 (MAD)

M. K. Dharmalingam v. The Official Receiver Tiruchirapalli, rep. by the General Body of Creditors

1999-03-25

R.BALASUBRAMANIAN

body1999
Judgment :- These three revisions are against the order in CM.A. Nos. 42 of 1988, 43 of 1988 and 44 of 1988 on the file of the Additional District Judge, Trichy, which in turn reversed the order in LA. No 123 and 124 of 1984 in LP. No. 1 of 1977 and LA. No. 133 of 1982 in LP. No. 5 of 1982 on the file of the Insolvency Court (Sub - Judge), Karur. 2. The revision petitioners in the first revision are the assignees of a mortgage which mortgage was executed by the insolvent in favour of the assignor. The revision petitioner in the second revision and the third revision is one and the same and he is the purchaser of that property from the insolvent. In LP. No. 1 of 1977, the order of adjudication was passed on 13.10.1982. In LP. No. 5 of 1982, the order of adjudication was passed on 12.11.1982. There is no dispute regarding the dates of the filing of the respective Insolvency Petitions and the dates on which the orders of adjudication came to be passed. Likewise, there is also no dispute regarding the date of the execution of the mortgage; the date of assignment as well as the date of sale. The order of adjudication had become final. The three applications referred to above were filed by the Official Receiver to annul the deed of assignment as well as the sale. The Insolvency Court dismissed all the applications on merits. The Official Receiver filed three appeals and they were allowed. Hence the present Revisions. 3. I heard Mr. R. Alagar, learned senior counsel for the revision petitioners and Mr. T.K. Seshadri, learned counsel appearing for the respondents. It is brought to my notice by Mr. R. Alagar, learned senior counsel that in LP. No. 1 of 1977 though there is an order of adjudication, yet there is no finding that the transaction alleged is not bona fide or it lacks ‘ good faith. As far as the order in LP. No. 5 of 1982 is concerned, it is brought to my notice by Mr. R. Alagar, learned senior counsel that the Insolvency Court itself in that order made provision for deciding the bona fide nature and presence of good faith in the transaction sought to be annulled in the stage of Sections 53 and 54 of the Provincial Insolvency Act. No. 5 of 1982 is concerned, it is brought to my notice by Mr. R. Alagar, learned senior counsel that the Insolvency Court itself in that order made provision for deciding the bona fide nature and presence of good faith in the transaction sought to be annulled in the stage of Sections 53 and 54 of the Provincial Insolvency Act. Therefore according to the learned senior counsel, the order of adjudication in I.P. No. 1 of 1977 cannot preclude the Court before which the annulment petition is pending to go into the question of good faith as well as bona fides in the transaction. However the appellate Judge had not gone into these aspects at all solely relying on Section 54 of the Provincial (Insolvency Act, which, according to the Appellate Judge, does not give any room at all for the Court to go into those two questions. Therefore according to the learned senior counsel, the order of the Appellate Court in each appeal must be set aside and the case should be remitted back for fresh f disposal in accordance with law. Mr. T.K. Seshadri, learned counsel for the Official Receiver in each of these Revisions would contend that the doctrine of lis pendens as provided for in Section 52 of the Transfer of Property Act gets attracted to the case on hand and therefore there is no scope at all for going into the presence of good faith and bona fide nature of the transaction. In as much as the assignees as well as the purchaser are not claiming their respective rights under the creditor (see Section 54 (2) of the Provincial Insolvency Act) under Section 54 (1) of the said Act, every such transaction shall be deemed to be void and invalid. Thus the Court is left with no discretion except to annul the transaction challenged and that is what the learned Appellate Judge had done in this case. The learned counsel for the Receiver would also argue relying upon Section 28 (7) and (2) of the Provincial Insolvency Act to contend that once the order of adjudication is made, it dates back to the date of the petition and then the property, on the order of adjudication being passed, vests with the Court or the Receiver. The learned counsel for the Receiver would also argue relying upon Section 28 (7) and (2) of the Provincial Insolvency Act to contend that once the order of adjudication is made, it dates back to the date of the petition and then the property, on the order of adjudication being passed, vests with the Court or the Receiver. Therefore all the transactions challenged in the annulment proceedings, having taken place subsequent to the filing of the petitions in view of Section 28 (7) of the Act, they must be necessarily declared null and void. 4. In the light of the arguments advanced by the learned senior counsel for the petitioners in each revision and the learned counsel for the respondents in this case, I went through the order of the Appellate Authority. The Insolvency Court had gone into the issues elaborately and found that the Official Receiver is not entitled to have the transactions annulled. It is always open to the Appellate Court to agree with the reasons given by the Insolvency Court or not. If the Appellate Court disagrees with the reasons given* by the Insolvency Court, then it is expected of the Appellate Court to give reasons as to why it is not agreeing with the Insolvency Court. But unfortunately in this case the Appellate Court had not gone into any of the reasons given by the Insolvency Court. The judgment of the Appellate Court runs to several pages in which the respective arguments of the counsel on either side alone were extracted. The conclusion by the Appellate Court is arrived at only in the following lines: “But any how since the appellant is counsel shows Section 54 of P.I. Act after adjudication, on the encumbrance and alienation done by the insolvent just within 3 months from the date of filing of the petition have to be annulled and the court has no other go to annul the alienation and encumbrance. I do agree with the learned counsel for the appellants. I answer this point accordingly. This conclusion not based on any reason cannot be sustained. It is open to the Appellate Court to give reasons to conclude that there is neither bona fide nor good faith. I do agree with the learned counsel for the appellants. I answer this point accordingly. This conclusion not based on any reason cannot be sustained. It is open to the Appellate Court to give reasons to conclude that there is neither bona fide nor good faith. It is also open to the Appellate Court if it is convinced that under the relevant provisions of the Provincial Insolvency Act the question of good faith or bona fide need not be gone into. But however the Appellate Judge had not chosen to do so. Especially when in LP. No. 5 of 1982, the question of bona fide and good faith was preserved to be decided at a later stage during annulment proceedings, the Appellate Court is expected to apply its mind on that issue and give its decision one way or the other which the Appellate Court has not done. Under these circumstances, I am of the opinion that the judgment of the Appellate Court is not a judgment in the eye of law and therefore it is liable to be set aside. Accordingly the judgment and decree in C.M.A. Nos. 42 to 44 of 1988 on the file of District Court, Trichy, is set aside and all the three appeals referred to above are remanded to the learned appellate Judge for fresh disposal in accordance with law. Let not the Appellate Court understand the order of this Court in these three revisions as having decided the rights of the parties conclusively one way or the other and it is open to the Appellate Court to dispose of the Appeals in accordance with law on the facts available without in any way being influenced by the order in these three revisions. The Civil Revision Petitions are disposed of accordingly.