134-NLR-NLR-V-30-In-re-INSOLVENCY-OF-ABDUL-MAJEED.pdf
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1988.
Present: Garvin and Lyall Grant JJ.
In re Insolvency of Abdul Majeed.
173—D. C. (Inty.) Malar a, 41.
Insolvency—Adjudication—Affidavit by insolvent—Sufficiency of proof—Ordinance No. 1 of 1853, s. 26.
An adjudication under section 26 of the Insolvency Ordinanceis not defective merely because it proceeds upon an affidavitfurnished by the insolvent.
^ PPEAL from an order of the District Judge of Matara.
N. E. Weerasooria, for appellant.
L. A. Rajapakse, for respondent.
November 14, 1928. Garvin J.—
In this case the appellant was adjudicated an insolvent upon hisown application. The application was in the usual form, and to itwas attached the usual statement of assets and liabilities dulyverified by the required affidavit. The learned District Judgethereupon, acting in pursuance of section 26, adjudicated him aninsolvent. Sittings were fixed for the proof of debts; creditorsappeared; and debts were proved. On August 28 a certain creditorappeared to prove a debt; having done so, his Counsel took theobjection that the adjudication was bad and should be annulled.The principal grounds upon which his objection was based wouldseem to be, first, that the material before the Court, to which I havealready referred, was insufficient, and secondly, that in any eventthe Court was wrong in acting upon the material, for the reasonthat the dates upon which the creditors referred to in the list ofassets incurred their respective liabilities to the insolvent were notset out. This objection purports to be based on the case of Majeedv. Chetty,* upon which it is sought to rest the argument that anaffidavit is of itself insufficient to justify the Court holding that theinsolvent had an available estate sufficient to pay 5 shillings in thepound, and that the law requires evidence in addition to anaffidavit before such an averment can be considered to have beenestablished. Upon an examination of the case of Majeed v. Chetty(supra), which has been submitted to this Court in two cases to whichI shall presently refer, and after a consideration to which I havemyself submitted this judgment, I do not think that it affords any1 fj Bat. Notes of Cases 1.
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foundation for the contention that it is an authority for any suchproposition. In Sedria v. Ramanathan1 the case was speciallyconsidered in the judgment of Bertram C.J., and his estimate of.the case is expressed in the following words:—“ I think it isclear that in Majeed v. Chetty {supra) what the Court must havemeant was, not that in no case would the petitioner’s affidavit besufficient evidence of the facts alleged, but that the affidavit in theparticular case was not sufficient.” A similar view of this case wastaken by de Sampayo J. in the case of In re the Insolvency ofAbdul Coder.*
The learned District Judge’s judgment was obviously influencedby the view submitted to him of the case of Majeed v. Chetty (supra),the only other observation made by him which might be said to beindependent of the case of Majeed v. Chetty (supra) consists in thestatement that the recovery of the sums due on the promissory notesand as the price of goods sold and delivered is highly uncertain.
Now, no additional material was placed before the learned DistrictJudge in this case. It would seem, therefore, that while he wassatisfied, and still is satisfied, with the oath of the insolvent that thesums claimed by him to be assets'of his estate are really due, a doubthas entered his mind as to whether they may eventually prove tobe recoverable. I am unable to see any material on this record tojustify such a doubt. There certainly was no material of any kindto raise such doubt placed before the Court by the opposing creditor.
As to the contention that the adjudication is defective, in that'the exact dates on which certain liabilities arose have not beenfully set out in the schedule, it is sufficient to say that while I agreethat it is necessary in the interests of all concerned that a compliancewith the requirements of section 20 should be insisted upon, I amunable to say that the omission to specify such dates is necessarilyfatal to an adjudication, which a Court has made after considerationof all the material placed before it.
For these reasons, I think that the order annulling this adjudica-tion must be set aside and the appeal allowed with costs.
Lyall Grant J.—
I agree. The Court here made an adjudication upon certainmaterial supplied to it by the.applicant-insolvent, and in doing soexercised its discretion ; later, without having any further materialplaced before it, it proceeded to exercise its discretion in a differentway. I should require very strong argument to convince me thatthe Court having once exercised its discretion could re-open thematter so as to exercise it in a different way.
Appeal allowed.
* 23 N. L. R. 315.* 23 N. L. R. 381.
1928.
Garvin J.In re
Insolvencyof AbdulMajeed