Judgment : VINOD K. SHARMA,J. 1. Dr.(Mrs.) K.Sailaja, the insolvent petitioner, has filed A.No.216 of 2011 in I.P.No.34 of 2009 for unconditional discharge from insolvency. Mr.K.Vijay Kumar Reddy has moved an application A.No.217 of 2011 in I.P.No.33 of 2009 for unconditional release from insolvency. 2. The applicants in both these applications were adjudicated as insolvents on petitions filed by the debtors on 05.03.2009. The applicants filed schedule of affairs in tune on 30.03.2009 and the notices were sent to all the creditors. The service was completed in the case of Dr.(Mrs.) K.Sailaja on 19.11.2009 and in case of Mr.K.Vijay Kumar Reddy on 17.06.2010. There are 24 unsecured creditors and total unsecured debt is of value of Rs.93,75,296/- (Rupees Ninety Three Lakhs Seventy Five Thousand Two Hundred Ninety Six only) in the case of Dr.(Mrs.) K.Sailaja. There are 21 unsecured creditors with total unsecured debt of Rs.32,91,158/-(Rupees Thirty Two Lakhs Ninety One Thousand One Hundred and Fifty Eight only) in the case of Mr.K.Vijay Kumar Reddy. 3. Public examination was completed on both applications on 02.03.2011. The applicants have complied with the orders passed by the Official Assignee and attended all the enquiries required by the Official Assignee and have placed all securities in the custody of Official Assignee. 4. Now, the prayer is made for absolute discharge from insolvency to lead a new lease of life . 5. On notice of applications, a report has been filed by the Official Assignee. In the report filed by the Official Assignee, it is disclosed that insolvents have not committed any offence pertaining insolvency proceedings covered under Sections 421 to 424 of Indian Penal Code. It is also reported that claim of not even below 1 paise in a rupee could be paid, that insolvents are disqualified from discharge under Section 39(2)(a) and (d). It is also reported that insolvents have not framed loss of liability, thus it is reported that applications are not maintainable. 6. The Official Assignee has opposed discharge on the ground that the insolvents assets are not of a value equal to twenty five paise in the rupee on the amounts of their unsecured liabilities, and also that insolvents had contracted debt provable under this Act without having at the time of contracting it any reasonable or probable ground of expectation that they would be able to pay it. 7. 7. Learned counsel for the applicants on the other hand vehemently contended that applicants are entitled to unconditional discharge, as the condition under Section 39(2) (a) & (d) is only one of the several circumstances for consideration and merely because the applicants are not able to pay 25%of the debt, cannot be the ground to deny discharge. 8. In support of this contention, learned counsel for the applicants relied upon a judgment of this Court in the case of T.P.Kunhiraman, Proprietor International Typewriter Emporium vs. The Official Assignee, Madras, 95 L.W. 442, wherein this Court was pleased to lay down as under: "4. S.39 states that the court has no discretion but to reject discharge if the insolvent has committed any offence under the Act or under Ss.421 to 424 IPC. That does not arise in this case. So far as the second limb of S.39 is concerned, it is left to the discretion of this Court to refuse discharge or suspend discharge for a specified time or grant conditional discharge. No doubt the Court has the duty to take into consideration several factors set out in S.39(2). It has to be noted that it is the totality of all the factors enumerated in S.39 (2) that will have an impact on the order to be passed under S.38. 5. As regards the complaint that the insolvent has not provided O.25 ps in a rupee, by way of dividend, I am to state that it is one among several circumstances, the Court has to take into consideration while dealing with an application for discharge. I have already pointed out that the debtor should not remain an undischarged insolvent for ever. In a case where there is a fair probability of the debtor providing in a reasonable period the minimum of 0.25 ps in the rupee as dividend the court shall hesitate in granting discharge. In the instant case, he will have to remain an undischarged insolvent almost till his lifetime if this condition were to be imposed as a general rule, for, it would take 161 months to make up Rs.32,300 at Rs.200 per month. The above illustration gives a clue that that was not the intent of the Legislature in making that provision." 9. The above illustration gives a clue that that was not the intent of the Legislature in making that provision." 9. Learned counsel for the applicants also contended that in this case, the applicants have honestly disclosed all the assets and have co-operated in the insolvency proceedings, therefore, this Court can grant absolute order of discharge, as the insolvents had placed all their property, which are control of the Official Receiver and from the insolvents point of view, nothing more remains to be done. 10. In support of this contention, reliance was placed on the judgment of this Court in the case of C.D.Desikacharivs. Official Receiver, Chingleput and another, AIR (30) 1943 Madras 26, wherein this Court was pleased to lay down as under: "There is nothing to prevent the Court granting an absolute order of discharge when it has been satisfied for instance, that the insolvent had placed all his property within the control of the Official Receiver so that from his-insolvents point of view nothing more remains to be done." 11. From the circumstances explained herein above, the applicants have been able to make out a case for conditional discharge, because as per the condition stipulated under Section 39(2), the applicants are not entitled to absolute discharge, but only to conditional discharge in terms of Section 39(1) (d) of the Presidency-towns Insolvency Act, which reads as under: "39(1)(d) – require the insolvent as a condition of his discharge to consent to a decree being passed against him in favour of the official assignee for any balance or part of any balance of the debts provable under the insolvency which is not satisfied at the date of his discharge, such balance or part of any balance of the debts to be paid out of the future earnings or after acquired property of the insolvent in such manner and subject to such conditions as the Court may direct; but in that case the decree shall not be executed without leave of the Court, which leave may be given on proof that the insolvent has since his discharge acquired property or income available for payment of his debts." 12. The applicants are, accordingly, granted discharge from insolvency, subject to their filing consent affidavits in terms of Section 39(1) (d) of the Presidency-towns Insolvency Act, within two weeks of receipt of certified copy of this order.