115-NLR-NLR-V-23-In-re-A.-H.-ISMAIL.pdf
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Present: De Sampayo and Schneider JJ.
In re A. H. Ismail.
29—D. C. (Infy,) Colombo^ 2,992.
Insolvency, s. 114—Remuneration of assignee*.
In fixing the remuneration to be paid to an assignee, the Courthas to exercise its discretion taking into consideration the dream,stances of the case. The scale recommended in In rcSinne LsbbeBros.* is only a general role, which is subject to variation inspeoial oases. Where the provisional assignee did work for onemonth, the Court fixed his commission at 1 per cent.
rpHE facts appear from the judgment.
Hayley, for assignee, appellant.
July 3,1922. De Sampayo J.—
This is an appeal by one of the provisional assignees objectingto the rate of commission allowed to him by the District Judge.The insolvent was A. H. Ismail, and the estate to be liquidatedwas a very large one. On August 19, 1920, the Court appointedH. K. Armstrong and K. Ramanathan as provisional assignees,and a large number of claimshaving subsequently been proved, thecreditors on September 21, 1920, chose their own assignee, and theoffice of the provisional assignees then ceased. During the monththat intervened the provisional assignees realized assets to the valueof Rs. 1,670,365 * 73, of which Rs. 1,489,400 were the proceeds sale ofAmerican gold dollars, and they dealt with the accounts of theinsolvent and did other work, which, judging from the report theysent in, the District Judge describes as requiring skill, judgment,and responsibility. But considering the short time they acted andall the other circumstances of the case, the District Judge fixed theircommission at 1 per cent, on the amount realized by them, eachassignee thus receiving Rs. 7,862*50 as remuneration, in additionto Rs. 1,000 which had been granted previously to each of the.assignees. Oue of the assignees, H. K. Armstrong, appeals fromthat order, contending that the provisional assignees were entitled tocommission according to a much higher scale. This contention iswholly based on the judgment in In re Sinne Lebbe Bros. (supra), inwhich Creasy C. J. and Stewart J. being pressed, as they said, withthe necessity of some general scale of remunerationfor assignees beingframed and recommended for general-adoption recommended asfollows: “ Where the insolvent’s estate does not exceed £1,000,
1*22.
1 {18$3-1868) Ram. Rep. p. .204.
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1982.
Db SampayoJ.
In re A. fl./m»A
the assignees to receive a commission of 6 per cent.; where theestate exceeds £1,000 bat does not exceed £3,000, the commissionto be 5 per cent, on the first £1,000, and 3 per cent. ott&U beyond;where the estate exceeds £3,000, the commission to be 5 per cent,on the first £1,000, 3 per cent, on the second and third £1,000, and2 per cent, on all beyond.91
These recommendations were approved, and were consideredeach as should be given effect to by Lawrie and Withers JJ. inSmith 6o Co. v. Maointoe1. These judgments were pressed uponthe District Judge, but he thought that “ the sum asked for asremuneration for a month’s work was extravagant,99 and addedthat he fixed the commission at 1 per cent, in the exercise of hisdiscretion. Section 114 of the Insolvency Ordinance itself requiredthe Court to exercise such discretion, for it authorized the Court toallow to the assignees of any insolvent estate as remuneration fortbeir services “ such sum as shall, upon consideration of the amountof the said estate and the nature of the .duties performed by suchassignees, appear to be just and reasonable.” In this ease theDistrict Judge in exercising his discretion took all these matters intoconsideration, the only noticeable thing as regards the amount ofthe estate being the large sum realized by the provisional assigneesby the sale of gold dollars, but it is not disputed that at that timethese gold dollars were in great demand and could be readily disposedof. In the case In re Sinne Lebbe Bros, (eupra) their Lordshipsthemselves laid down a caution as follows: “ We recommend this(the scale in question) as a general role only, subject to variation inspecial cases; but we think that very strong proof of assigneeshaving necessarily incurred peculiar trouble and risk should begiven before any large sum is allowed.” This not only conservesthe discretion of the Court, but appears to me to destroy the practioalutility of the scale recommended, and referring to that same caseLasoelles C.J., in De Witt v. Jevunjee,* observed: “It is quite clearthat the Court did not, and indeed could not, derogate from thediscretionary power vested in the Court by section 114 of theInsolvency Ordinance.” In my opinion the District Judge exercisedbiB discretion very properly, and the sum allowed is “ just andreasonable,” especially when it is remembered that the creditors9assignee, who will have a very large quantity of complicated anddifficult work to do in order to carry the liquidation of the estateto its final conclusion, will have to l}e paid further remunerationfor his services.
I think this appeal should be dismissed.
Sohhbedkb J.—I agree,
.Appeal dismissed.
1 (1896) 7 Tam. Bep. 11.‘ (1914) 2 Bat. N. O. 66.