( 308 )
Present: Schneider A.C.J. and Lyall Grant J.
In re the Insolvency of A. A. M. Saleem.
91—D. C. Colombo, 3,554.„
Insolvency—Examination of insolvent after final sitting—Right ofcreditors—Discretion of Judge.
In insolvency proceedings, after the conclusion of the secondsitting and final examination, the creditors are not entitled to askfor a further sitting to examine the insolvent; but the Court mayexamine him before the certificate meeting so as to be satisfiedthat he is entitled to a certificate.
Per Schneidbb A.C.J.—I am not convinced of the correctness ofthe procedure of fixing a special meeting for the examination ofthe insolvent after the second sitting had been closed and thecertificate meeting fixed.
In re Insolvency of H. P. de Silva 1 followed.
PPEAL from an order of the District Judge of Colombo.
^ Haijlcy (with Choksy), for appellant.
Garvint for opposing creditor, respondent.
October 1, 1926. Schneider A.C.J.—
agree with my brother that this appeal should be dismissed withcosts.
Of the four cases which were cited to us at the argument, onlyone is precisely in point, namely, that In the matter of the Insolvencyof H. J Silva1 referred to in my brother’s judgment. I wouldadopt, in this case, the procedure directed in that judgment,because it seems to me that the appellant has suffered no prejudiceby the order of the learned District Judge, and that substantialjustice will be done by that order. But I would state that I am notconvinced of the correctness of the procedure of fixing a specialmeeting for the examination of the insolvent after the secondsitting had been closed, and the certificate^nieeting fixed. It seemsto me that there is no sanction for this procedure in the provisions ofthe Insolvency Ordinance, No. "f of 1853. In a case like the present,the learned District Judge might have acted under section 41 ofthe Ordinance to which our attention was drawn by Mr. Garvin,appearing for the respondent. But apart from that section, it was
1 (1905) 2 Bal. Rep. So.
( 309 )
within the competence of the Judge to examine the insolventhimself at the certificate meeting if he was not satisfied with theaffidavit filed in this case by the insolvent. The learned DistrictJudge in making the order appealed from followed the procedureIndicated in the case reported in Balasingham*a Reports.1
As I have already stated, there is no sufficient reason for inter-fering with this order.
Ltall Grant J.—
This is an appeal from an order of the District Court of Colomboin an insolvency case.
After the final examination of the debtor and after a date hadbeen fixed for the certificate of conformity meeting, some opposing-creditors filed objections to the grant of a certificate.
It was at first objected that these objections had been filed lessthan three clear days before the certificate meeting, but thisobjection was abandoned on appeal.
It was further objected in the District Court that a Court had nopower to albw a creditor to examine the insolvent after the secondsitting ani final examination had been concluded. The learnedDistrict Judge over-ruled tins objection and it is from this rulingthat this appeal has been taken.
Tfre case of In re the Insolvency of Nadarajah,2 is an authorityfor holding that the insolvent cannot be examined at the certificatemeeting.
In the present case, however, the certificate meeting has beenadjourned, and the application was one for a sitting to examine theinsolvent. The District Judge has held that the creditors are not■entitled to such a sitting, but he considers that it is the duty ofthe Judge himself to examine the insolvent before the certificatemeeting for the purpose of satisfying himself thoroughly that theinsolvent is entitled to a certificate, and that he is at liberty toallow creditors to examine the insolvent if he so pleases.
In In- the Matter of the Insolvency of H. P. Silva (supra) theSupreme Court expressed the opinion that the District Judgeshould not close the second sitting until the insolvent had satisfiedthe Court with regard to his insolvency. The reasons given werethat “ before the Court can issue a certificate of conformity, it mustbe able to certify, as set out in the form of the certificate ofconformity attached to the Ordinance, that the' insolvent did ona certain day finish, his examination and upon such examina-tion make a full disclosure and discovery of his estate and effects
In re theInsolvency ofA.A.M.Saltern
1 (1905) 2 Bal. Rep. 85.
8 (1922) 24 N. L. R. 435.
( 310 )
1026It is of the utmost importance that persons should not
—Treceive a certificate of conformity unless they have made a full
Gbant J. disclosure and discovery of their estate and effects, and in everythingIn—thi kftve conformed to the Ordinance, and further that the Judge ofInsolvency of the Court should be satisfied that there is ‘no reason to questionthe truth or fullness of the discovery ’ made by the insolvent/*
In that case the Court did not think it necessary to set aside the'dosing of the second sitting, but it directed that prior to the date-fixed for the allowance of a certificate, a date should be fixed by theCourt to enable a meeting to be held, prior to the public sitting lorthe allowance of a certificate, for the examination of the insolventeither by or at the instance of the creditors-appellants or of theCourt itself.
After such examination the creditors were to be allowed to filegrounds of opposition to the issue of a certificate of conformity to-the insolvent.
The order in the present case is based upon that judgment andI think it is right.
As stated by the learned District Judge, the order is made not aaa concession to the creditors, who appear to have been negligent inregard to their rights, but in the interests of public order.
I would dismiss the appeal with costs.
Appeal dis mined.
In re the Insolvency of A. A. A. M. SALEEM