030-NLR-NLR-V-12-JAYESINGHE-v.-ANTHONY.pdf
( 100 )
1909.
March 23.
Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Wendt.
In the Matter of the Insolvency of K. P. Anthony.JAYESINGHE v. ANTHONY.
D. C., Colombo, 2,303.
Insolvency—Ignorance of proceedings—Granting of certificate—Recoilingcertificate—Ordinance No. 7 of 1853, s. 129—Powers of SupremeCourt.
A creditor who has been prevented from opposing the grant of acertificate of conformity to an insolvent in the District Cou. .. byreason of want of notice of the insolvency proceedings, may applyunder section 129 of the Insolvency Ordinance to the SupremeCourt to recall and cancel such certificate.
A PPLICATION under section 129 of Ordinance No. 7 of 1853to the Supreme Court to have the certificate granted to theinsolvent K. P. Anthony by the District Court recalled and cancelled.The facts on which the application was based are fully stated in thejudgment of the Chief Justice.
Hayley, for the petitioner.
H. A. Jayeivardene, for the insolvent.
March 23, 1909. Hutchinson C.J.— ■
This is an application under section 129 of Ordinance No. 7 of1853 for the recall and cancellation of the certificate which wasgranted to the insolvent K. P. Anthony on August 31, 1908.
On May 19, 1908, the insolvent gave two cheques drawn by himto M. J. Perera or order, and on May 21 he gave a third chequedrawn tn the same way ; they were in payment of tea sold to himbetween April 20 and May 30. He swears that he dealt with andgave the cheques to M. J. Perera personally, but the petitionersA. Don Charles Jayesinghe and M. J. Perera swear that they weretrading in partnership under the name of M. J. Perera ; that Jaye-singhe was the only active partner, and that the insolvent did notknow and never had any dealings with M. J. Perera personally, butdealt only with and gave the three cheques to Jayesinghe.
On June 2 the insolvent filed a declaration of insolvency ; hewas adjudicated insolvent on July 2, and was granted his certificateon August 31.
The three cheques were, as appears from the endorsements onthem, negotiated and were dishonoured on May 23,. 25, and 27respectively. On July 29 Jayesinghe, in the name of M. J. Perera,
( 101 )
sued tihe insolvent on the cheques ; on August 7 the summons wasreported served; the defendant did not appear; decree nisi wasobtained and served; and on October 21 the decree was madeabsolute. On November 13 writ of execution was issued againstthe debtor’s property, but nothing was realized; on December 13writ against his person was issued, and then for the first timeJayesinghe heard of the insolvency proceedings ; so he has sworn,and I see no reason to doubt it. He says that the reason why hedid not hear of them sooner was that there was an error in thedescription of the insolvent in the District Court register.
On January 15, 1909, Jayesinghe, not in his own name, but as“M. J. Perera,” filed an application to this Court under section 129,and filed an affidavit in support, which purported to be signed byM. J. Perera, but was in fact sworn by himself. On January 28the application was ordered to stand over for a fortnight with libertyto the applicant to join in a new application with his partner. Thepresent application is by the two partners.
The insolvent in his affidavit sworn on January 29 swears that hehad no transactions whatever with Jayesinghe, and that when hetook steps to have himself adjudicated insolvent he informed M. J.Perera that he was unable to pay his debts, and had to avail himselfof the provision of the Insolvency Ordinance. Jayesinghe in hisaffidavit of January 29 swears that he carried on business in partner-ship with M. J. Perera, and was in sole charge of it, his partnertaking no part in the management; and that in all his businessdealings he always signed as M. J. Perera; and in his affidavit ofFebruary 5 he swears that he had dealings with the insolvent,and that the latter bought tea from him, and never, to hisknowledge and belief, had any transactions with his partner. M.
J.Perera in his affidavit of February 5 swears that he is partnerwith Jayesinghe, and entirely left the business of a tea merchant inhis hands, and was not an active partner in his business; that hedid not know the insolvent personally, and had never spokento him,except on January 29, 1909, nor had any dealings with him, andthat the insolvent did not draw the three cheques in his favourpersonally; and that he had no knowledge of the insolvency, andhad no notice of it from the insolvent.
In reply to these affidavits the insolvent in an affidavit of March15 swears that he informed “ M. J. Perera proper,” before he wasadjudicated insolvent, that he was unable to meet his engagementswith his creditors, and would therefore seek the protection of theCourt under Ordinance No. 7 of 1853, and that he never had anydealings with Jayesinghe, and that he gave tne cheques to “ M. J.Perera proper.”
Two things seem to be fairly clear in this business. One is thatthere has been false swearing on one side or the other, which ought,to be inquired into. The other is that Jayesinghe, at any rate, did
1909.
March 23.
Hutchinson
C.J.
( 102 )
1909. not know of the insolvency proceedings until after the certificate wasMarch 23. given, and had no opportunity of proving his debt or opposing, theHutchinson grant of the certificate, and that his ignorance was not altogetherC.J. without excuse. The insolvent had not denied that he had notice ofthe action and of the judgment against him; and all these proceed-ings and those which are said to be now pending with reference to thejudgment could have been avoided, if he had done that which thebarest politeness and honesty towards a creditor made imperative,and had informed either the plaintiff or the Court of the insolvencyproceedings.
In my judgment the certificate granted to the insolvent should berecalled and cancelled, and the District Court should appoint anotherpublic sitting for the allowance of a certificate.
Wendt J.—I agree.
Application allowed.
«