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1 - 6 of 6 (0.19 seconds)Section 75 in The Provincial Insolvency Act, 1920 [Entire Act]
Section 4 in The Provincial Insolvency Act, 1920 [Entire Act]
Rustomjee Dorabjee vs K.D. Brothers And Anr. on 30 April, 1926
3. A preliminary objection was taken to the hearing of the appeal by the learned advocate appearing for the respondents, the three Sen Brothers and the four Chaki Brothers. It was contended before us on behalf of these respondents, that, the Dinajpur Trading and Banking Co. Ltd., had no right of appeal as the company was not in a position of a creditor whose debt had been proved. It was further contended that the order of the learned District Judge was not such an order which was made appealable by the Provincial Insolvency Act, in view of the provisions contained in Section 4 read with Section 75 and Sch. 1 of the Act. The Dinajpur Trading and Banking Co. Ltd., was allowed to appear in the proceedings in the Court below and intervened in the same, as a creditor. The debt of the company had not at the time been proved; but all the same it could not, in our judgment, be said that the company was not a "person aggrieved" within the meaning of the Provincial Insolvency Act: see in this connexion the decision of this Court in the case of Rustomje Dorabjee v. K.D. Brothers . We hold that the Dinajpur Trading and Banking Co. Ltd., was a "person aggrieved" within the meaning of the Provincial Insolvency Act and had therefore a right of appeal, although the debt of the company had not, till the time when it was allowed to intervene in the insolvency proceeding, been proved before the Court.
Gopal Ram vs Magni Ram And Ors. on 14 December, 1927
4. In regard to the second contention bearing upon the preliminary objection urged before us, it is to be noticed that Section 4, Provincial Insolvency Act, empowers the District Judge to decide all questions whether of title or priority or of any nature whatsoever and whether involving matters of law or of fact, which may arise in any case of insolvency coming within the cognisance of the Court or which the Court may deem it expedient or necessary to decide for the purpose of doing complete justice or making a complete distribution of property. This section read with Section 75 and Sch. 1, Provincial Insolvency Act, does confer a right of appeal to the aggrieved party in a case in which an order of the present description has been made by the District Judge. Furthermore, it appears to us that even on the assumption that the provisions relating to appeal as contained in the Provincial Insolvency Act do not cover an order of the nature which we are considering in the present case, there could be no doubt that in view of Section 75, Clause (3) the order was appealable with the leave of this Court. In the present case, the appeal having been admitted and allowed to be proceeded with, it was, in our judgment, tantamount to the granting of leave as contemplated by the Provincial Insolvency Act. The view we take of the matter is in consonance with the decision of the Patna High Court in the case of Gopal Ram v. Magni Ram AIR 1928 Pat 338. The preliminary objection raised on behalf of the respondents must therefore be overruled.
Vadilal Lallubhai vs Shah Khushal Dalpatram And Anr. on 3 December, 1902
6. It appears to us to be clear that the learned Judge's view in the matter of his disallowing the interrogatories is correct. A party is not entitled to administer interrogatories for obtaining discovery of facts which constitute exclusively the evidence of his adversary's case. In our judgment therefore there is nothing wrong in the learned District Judge's decision in disallowing the interrogatories as filed in Court. As it has been indicated already, the object of the creditor Nalini Mohan Rai Chaudhuri and that of the creditor, the Dinajpur Trading and Banking Co. Ltd., the appellant before us, were to have Mahendra Chandra Sen and his three brothers, as also Sris Chaki and his four brothers, adjudged insolvents, so that the properties owned by the Sen Brothers and the Chaki Brothers might be added to the assets of the Firm Mahendra Chandra Sen and Sris Chandra Chaki. We have been asked by the learned advocate for the appellant to proceed with the presumption against the respondents the Sen Brothers on the one hand and the Chaki Brothers on the other, on the question of their being members of two joint Hindu families. Even on the supposition that there was any such presumption arising from the facts and circumstances of the case before us, from the mere fact that a person carrying on business is a coparcener in a joint Hindu family, it does not necessarily follow that all his coparceners are his partners in that business. The fact of partnership must be proved by evidence showing that the persons alleged to be partners have agreed to combine their property, labour and skill in the business and to share the profits and losses in the same: see in this connexion the decision of Chandavarkar, J., in the case of Vadilal v. Shah Khushal (1903) 27 Bom 157(His Lordship then considered evidence and concluded). On the whole, we have no hesitation in agreeing with the learned District Judge in his conclusion that the evidence in the case before us is quite inadequate for the finding that the Sen Brothers at Bogra and the Chaki Brothers at Pabna were partners of the rice-mill at Calcutta. In the result, the appeal fails, and is dismissed. The parties are to bear their own costs in this appeal.
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