060-NLR-NLR-V-38-GOONERATNE-v.-THE-BANK-OF-CHETTINAD.pdf
AKBAR J.—Gooneratne v. The Bank of Chettinad.
289
1936Present: Akbar and Koch JJ.
GOONERATNE v. THE BANK OF CHETTINAD.
160—D. C. (Inty.) Colombo, 4,848.
Insolvency—Particulars of petition—Judgment-creditor in a position to sue outexecution—Personal service of notice on person adjudicated—OrdinanceNo. 7 of 1853, s. 12.
In a petition for the adjudication of a person as insolvent the petitioningcreditor must state that he is in a position to sue out execution upon hisjudgment and he must establish that fact.
The notice required by section 12 of the Insolvency Ordinance mustbe served personally on the person affected.
^ PPEAL from an order of the District Judge of Colombo.
H. V. Perera (with him N. Nadarajah), for insolvent, appellant.
Cur. adv. vult.
July 10, 1936. Akbar J.—
In this case the insolvent appeals from an order of the District Judgemade under section 12 of Ordinance No. 7 of 1853, adjudicating himan insolvent under the provisions of that section at the instance of thejudgment-creditor, the respondent to this appeal. Under that section,there are certain requisites which must be observed before a personin the position of the respondent can ask for an order attaching hisdebtor the insolvent.
In the first place, no evidence has been led except the petition and twoaffidavits, one' by the attorney and manager of the petitioner and the *other by the proctor appearing for the petitioner.
1CJ. N. B £2999 (1/54)
290
A&BAB 3.—Gooneratne v. The Bank of Chettinad.
Mr. Perera has taken several objections to the correctness of theorder. The first objection that he took was on the authority of the caseof de Zoysa v. Baur and Co.'. It was held in that case that in a petitionfor the adjudication of a person as insolvent, where the only materialbefore the Court were the petition and affidavit of the petitioning creditor,they were insufficient proof of the petitioning creditor’s debt. Poyser J.there mentions the case of Ex parte Dodd in In re Ormston where BaconC.J. held that the petition and affidavit in support of the adjudicationwere not sufficient proof of the petitioning creditor’s debts.
Another objection taken by Mr. Perera was that a very materialrequisite of section 12 has not been set forth even in the petition andaffidavit, namely, the necessity of stating and proving that the petitioningcreditor is in a position to sue out execution on the judgment. Thedocuments filed simply show that the petitioning creditor had obtaineda decree for the payment by the appellant of a sum of Rs. 43,600 withfurther interest and costs. It is not even stated there that the costshave been taxed, and if they had been taxed, the amount of such taxedcosts is not shown in the documents filed.
A further objection taken by Mr. Perera is of the utmost importance,namely, that that section requires proof of personal service on theappellant. What is alleged in the affidavit is that the proctor for therespondent posted by registered post to the insolvent a letter, a copy ofwhich has been filed with the affidavit, and that a reply was receivedfrom another proctor, referring to this letter which had been addressedto the appellant, and sending a cheque for Rs. 100, on account, andthat the cheque was returned. I do not think that the law recognizesthis as proof of personal service, as required by the section I havereferred to.
' Reference was made to an English case—Goggs v. Huntintower—where evidence was furnished by affidavit to prove that the writ ofsummons was actually received by a certain woman on behalf of hermaster, the defendant, that it was further received by her employer, andthat, the defendant was heard to say : “ Take it back ; I won’t have it ”.Referring to this Parke B. said as follows : —
“ In consequence of those decisions the Judges have come to adetermination that, in future, there shall be no equivalent for personalservice.”
and Alderson B. says as follows : —
“ Service means serving the defendant with a copy of the processand showing him the original, if he desires it ….”
This indicates what is quite clear in our Civil Procedure Code, viz.,that personal service means an actual service on the person affected,by a duly constituted agent who hands the document into the hands ofthe person so affected.
In my opinion each of the objections is entitled to succeed and theappeal should be allowed with costs in this Court and the Court below,the order of the learned District Judge being set aside.
Koch J.-—I agree.Appeal allowed.
1 35 N. L. B. 318.2 (Lord) 12 M. and W. 503.