051-nlr-nlr-v-05-re-wikramanayake-rupasinghe-appellant
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Re VIKRAMANAYAKE.Rupasinghe, appellant..
1901.
■July 2 and .5.
D. G., Colombo, 1,884.
Assignee in insolvency—Liability of, for what lie might have recovered except forhis default—Power of Court to summarily order the assigriee to bring intoCourt ike amount he neglected to recover—Ordinance No. 7 of 1853.ss. 78, 113.
Under sections 78 and 113 of the Insolvency Ordinance of 1853, Anassignee is not responsible for irrecoverable debts.
Query whether it is open to the District Judge to direct theassignee to bring into Court a sum of- money which he might haverecovered but did not, without a full inquiry into hu- conduct and thequestion whether the debts were recoverable or not.
T
HE appellant in tliis ease was an assignee in insolvency, whohad been ordered by the Additional District Judge of
Colombo to pay into Court summarily .the full value of the bookdebts due to the insolvent, on the ground that the assignee had 'neglected to sell or recover them in due time, so that they hadbecome prescribed.
( 176 )
1901. Wendt, for appellant.—This order was based on the auditor’sJuly 2 and 5, report, but “the assignee filed an explanation. The Court has nopower to deal with this matter in the summary manner it has done.The wording of section 113 of Ordinance No. 7 of 1853 is similarto that of 6 Geo. IV., c. 16, s. 106, and a case decided on it applieshere. Ex parte Keys, 2 Deacon and Chitty, p. 633. It was theredecided that a Commissioner in bankruptcy cannot charge theassignees with what they might have recovered but for theirdefault. There were not sufficient facts to justify the presentorder. No creditors moved. If necessary a new assignee may beappointed, and it would then be open to him to allege and provenegligence against the old assignee, but the present order is bad.
Cur. adv. vult.
5th July, 1901. Lawiub, A.C'.J.—
The learned District Judge made this order: —
“ It was the debts, whether good or bad, that the assignee under-“ took to sell by auction and bring the proceeds to Court. He“ has not done this, and is therefore accountable for the whole“ amount, Its. 774-33. I order the sum of Rs. 774-33 to be added“ to the credit side of the assignee's account, and the amount- to“ be paid into Court by him on or before the 21st.
On the latter day the District Judge ordered writ to issue forth-with to enforce the order to pay Rs. 774-33.
It seems to us that this order was founded on insufficient-material. The assignee said that the debts were worthless. Noevidence as to the value was adduced. The District Judge readthe list of alleged debtors, and he said: ‘ ‘ Some of them are gentle-“ men of high standing in Colombo, who would never think of“ repudiating a just debt. " This is not enough to justify a decreefor the whole alleged value being entered against .the assignee.If the debts were irrecoverable, the assignee is not responsible.There has not been a sufficient inquiry either into the assignee’sconduct or into the value of the book debts to justify the rulingof the District Court. I would therefore set aside the order asto the Rs. 774-33.
If it had been proved that the book debts, to the amount ofRs. 774-33, were a good and recoverable asset of the insolvent’sestate, and that the whole or the greater part of that sum hadbeen lost to the estate by the culpable negligence of the assignee,then it would have been necessary to decide whether the 78thsection of the Ordinance No. 7 of 1853 gave the Court power todirect the assignee to pay that money, on the footing that it hadcome into his legal possession as assignee.
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On the scope oi the 78th section it is not necessary now to give J901.an opinion, holding as we do that the necessary facts to establish JulySSjmi S.the value of the debts and the legal responsibility of the assignee Lawbie,were not before the Court.A.C.J.
We do not interefere with the order as to Rs. 15.75, a payment toGunasekere.
Moncreiff J.—I am of the same opinion.
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