Patna High Court
Chauthmal Bhagirath vs Khem Karan Das And Ors. on 8 November, 1927
Equivalent citations: 107IND. CAS.842, AIR 1928 PATNA 116
JUDGMENT Kulwant Sahay, J.
1. This is an appeal on behalf of the creditor against the order of the District Judge of Manbhum rejecting his application for adjudication of one Gauridutt Singh, a debtor of the firm, as an insolvent. Some of the other creditors opposed the application and the learned District Judge has dismissed the application on the ground that it was barred by res judicata.
2. The facts are shortly these. The debtor Gauridutt applied for insolvency on the 5th October, 1925. His application was dismissed for default on the 12th December, 1925. On the same date one Tejmal, another creditor, made an application for adjudicating the debtor an insolvent. This application was ultimately dismissed on the 20th February, 1926, on the ground that the applicant had failed to file process-fees as required by the Court. Before the application of Tejmal was dismissed on the 20th February, 1926, Chauthmal Bhagirath, the present appellant, had made an application on the 1st February, 1926, praying for permission to be joined hand as an applicant in the case and permission was granted on that date. But the application of Tejmal was dismissed on the 20th February on the ground of his failure to file certain process-fees which he was directed to file. The present appellant Chauthmal Bhagirath thereupon filed the present application on the 24th February, 1928, and the ground upon which he made this application was that (the debtor had with intent to defeat and delay his creditors departed from his dwelling-house and usual place of business and was deliberately absenting himself so as to deprive his creditors of the means of communication with him and that this was an act of insolvency within the meaning of Section 6 (d), Provincial Insolvency Act). Upon this application two of the creditors, namely, Khem Karan Das Jokhiram and Gauridutt Ganesh Lall appeared and opposed the adjudication of the debtor as an insolvent.
3. It appears from the order of the learned District Judge that the application of the present appellant was opposed on three grounds: firstly, that the applicant's alleged dues were bogus, secondly that the application was time-barred, and thirdly, that it-was barred by res judicata. The learned District Judge has found that the debt of the applicant was not a bogus debt and that the application was not time barred, but he has dismissed the application on the ground of res judicata, because in the proceeding arising out of Tejmal's application the present appellant was also a party and that the application had been dismissed by the District Judge for default in payment of process-fees. In my opinion the dismissal of the application of Tejmal did not operate as res judicata in the present proceeding. It appears that the dismissal of Tejmal's application was under the provisions of Order IX, Rule 2, Civil Procedure Code and dismissal of an application for insolvency under Order IX, Rule 2, of the Code does not prevent the applicant from presenting a fresh application. This was the view expressed by a Division Bench of the Calcutta High Court in Abdul Aziz v Habid Mistri 49 Ind. Cas. 229 and, in my opinion, this is the correct view.
4. It is contended on behalf of the respondents who are some of the opposing creditors that the dismissal was not under Order IX, Rule 2, but one under Order IX, Rule 8, and that a fresh application is barred under Order IX, Rule 9, but in order to bring the case under Order IX, Rule 8, it has. to be established that the defendants did appear on the date the application was dismissed. There is nothing on the record to show it. Mr. A.B. Mukerji refers to the postal receipts or acknowledgments showing service of notice upon the creditors, but the application of Tejmal was dismissed for non-payment of process-fees and although notices might have been served there is nothing to show that the creditors did appear on the date on which the application was dismissed, I am, therefore, of opinion that the dismissal was one under Order IX, Rule 2, and the present application is not barred by res judicata.
5. It is further pointed out on behalf of the appellant that the previous application of Tejmal was based on an act of insolvency different from the one alleged" in the present application of the appellant and that is another reason for holding that the present application cannot be barred by res judicata. It has been contended on behalf of the respondent that the debtor cannot be adjudicated an insolvent in as much as it has not been proved that he departed from his dwelling-house or his usual place of business or otherwise absented himself with intent to defeat or delay his creditors as required by Clause (d), Section 6, Provincial Insolvency Act. In the first place this objection does not appear to have been taken before the learned District Judge. In the second place, I find that there is evidence of the fact that the insolvent had ceased to live in his usual dwelling-house and was absent for thirteen or fourteen months on the date the evidence was given, namely, the 14th February, 1927, and that his whereabouts were unknown.
6. It is contended that the evidence as required by law was evidence of the intention of the debtor and that positive evidence had to be given that he absented himself with intent to defeat or delay the creditors. It is impossible for any witness to come and swear as regards the intention of the debtor. The intention can be gathered only from the circumstances of the case and having regard to the fact that the debtor in the present case left his place of residence without paying his debts and that his whereabouts were unknown the Court could reasonably infer that he absented himself with the intention of defeating or delaying his creditors. I am, therefore, of opinion that the ground upon which the application was dismissed cannot be maintained.
7. The result is that the debtor Gauridutt must be and is hereby adjudicated an insolvent and it is directed that he do apply for his discharge before the District Judge within six months from this date. The appellant is entitled to his costs from the opposing creditors Hearing-fees three gold mohurs.
Macpherson, J.
8. I agree.