050-NLR-NLR-V-16-SOYSA-v.-FERNANDO.pdf
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Present: De Sampayo A.J. and Pereira J.
SOYSA u. FERNANDO.
80—D. C. Colombo, 2,480.
Insolvency—Grant of a certificate to the insolvent—Certificate not voidthough no assignee was appointed.
A grant of a certificate of conformity to an insolvent was heldnot to have been vitiated by reason of the fact that no assigneewas appointed at the time of the grant.
T
HIS was an appeal by the insolvent against an order of theDistrict Judge of Colombo (H. A.. Loos, Esq.) suspending
the certificate issued to him for twelve months.
E. IF. Perera, for the appellant.—The proceedings in this actionare all irregular as no assignee was appointed; consequently noassignee’s report was before the Court. Counsel cited PitcheTamby v. Abdulla,1 In rc Presslie,2 In re de Groosfi
IF. H. Perera, for the respondent.—The appellant was presentat the certificate meeting, but he did not raise this objection in thelower Court. The objection is not even raised in the petition ofappeal. It is the practice of the District Court not to appoint anassignee where there are no complicated accounts and the amount-involved is very small. Counsel cited Grenier, vol. 3 (1873), p. 98.
Cur. adv. vuli .
July 9, 1912. De Sampayo A.J.—
The District Judge has allowed a certificate to the insolvent, buthas suspended it for twelve months, and the insolvent appeals fromthe latter part of the order. In his examination the insolvent statedthat in 1908 he borrowed Rs. 800 and built a; house on a land whichhe presented to his daughter on her marriage in 1903. He is also
1 (1908) II N. L. B. 205, at page 208.2 (1895) 1 N. h. R. 321.
« (1903) 6 N. L. B. 271.
1912.
1912.
Dk SampavoA.J.
8oysa v.Fernando
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recorded to have stated that he borrowed Rs. 400 in 1908 for theexpenses of the wedding of that daughter. The District Judge*thereupon remarked that it was impossible to understand how theinsolvent could have borrowed money in 1908 to spend on a weddingwhich took place in 1908, and he thought that the insolvent wastrying to conceal the true state of his affairs. At the hearing of thisappeal an affidavit from the insolvent was tendered to us, explainingthat what he had said was that he borrowed the Rs. 400 in 1908 forthe wedding expenses of his second daughter. This Court- does notcountenance attempts to correct records by affidavits. But apartfrom that, the error in the record, if there is an error, is not verymaterial, because there is another and sufficient ground for thesuspension of the certificate. The insolvent transferred to thedaughter the only property he had and continued to borrow largesums of money, and the District Judge thinks that he acted 'dishonestly in borrowing money which he had not the slightestprospect of ever being able to repay. I do not think that we oughtto interfere with the discretion of the District Judge in suspendingthe issue of the certificate.
An objection was also taken at the argument to the effect thatthe whole proceeding was irregular, because no assignee has beenappointed, and no report was therefore available to the Court inadjudicating on the question of a certificate. In the regular orderof procedure no doubt the assignee would be appointed at the firstpublic sitting, as provided in section 66 of the Insolvency Ordinanceof 1853, before the examination of the insolvent takes place andbefore the certificate meeting is called. But it was held in D. C.Kandy, 520,1 that the' provision of section 66 as to the time ofappointment was merely directory. The practice of our Courts.sanctions the certificate meeting sometimes being held before orwithout the appointment of an assignee. There was the less reasonin this case for the appointment of an assignee, because the insol-vent's only assets consisted of a few bits of furniture valued byhimself at Rs. 10. The decisions of this Court pointing out theimportance of a report from the assignee before the consideration ofthe issue of a certificate to the insolvent were cited to us, but theyare no authority for< the proposition that any order as to the certi-ficate is vitiated if there is no assignee and therefore no report. Itis, however, unnecessary to go into this matter further, becausethe insolvent, who took part in the proceedings at the certificatemeeting, took no objection either there or in the petition of appeal,and is not entitled to upset all the proceedings now on a meretechnical point. I think the appeal should be dismissed.
Pereira J.—I agree.
Appeal dismissed.
i (1878) 3 Grenier $8.