Provincial insolvency act
basavaraj shiromani
(Querist) 02 November 2011
This query is : Resolved
Sir,
A person already adjudged as insolvent in the year 1956 and after his death, whether his legal heirs can remit the debt amount to the creditors and then is it possible for such legal heirs to get back the properties of insolvent which have been seized by the court through the court receiver.
the facts of the case is that,
One Mr. Bang was adjudicated as insolvant in the year 1956. since he was unable to pay the debts of the creditors, the court is seized his one land and two houses and appointed a court receiver to manage the property and then to recover the income from these properties and arranged to get his legal fees and as well as remit the remaining amount in the court towards discharge of loan of creditors.
two receivers were appointed one by one and both are now dead. In the year 2004, legal heirs came to know that there was debt on the head of their father. Therefore now Legal heirs of deceased insolvant prson have remitted the balance of debt and pray to court to discharge their deceased father from the burden the insolvancy. And further they pray to issue warrant of possession againt the persons who are in occupant of land and two houses. The petition copy is attached herewith. The matter of land is seized in the high court and the land matter can be persuaded after the decision of the hight court under Karantaka Land Reforms act.
so for as house propreites are concern one occupant of a house filed his objection resisting the order of possession and has not stepped in to witness box. the secound person has taken the summons of petition but has remained ex parte. will you please guid me from getting the possession of houses and further enligtned me with the relevant comentary and also any rulings in this aspect.
Misc Insolvency Petition No: /2Q04.
IN THE COURT OF HOKBLE CIVIL JUDGE (SR.DN>
BAILHON'GAL. AT: BAILUO^GAL.
BETWEEN:
1. Shri: Balaji S/o Shivanarayan t& Govardharn Bhang. Age: 32 years. Occ: Business and Agriculture. R/o: Shorapur. Dist: Gulbarga, P.A.Holder of Petitioeners 2 to IZ. Now residing At Bailhongal.
2. Shri: Nandkishor S/o Shankarlal Bhang.
Age: 5S years. Occ; Business. R/o: Shorapur. \ Dist: Gulbarga.
3. ^Shri: Devikishan S/o ShankaralalBhang. ge: Major Occ: Business and Agriculture. : Shorapur. Dist: Gulbarga.
4. Shri: Ramavilas S/o Shaukaralal Bhang. Age: Major Occ; C.A R/o: Raichur.
5. Smt: Kamahai W/o Bhagavandas, Innani Age: Major. Occ: Household. R'o: Raichur.
6. Smt: Saraswatibai W/o Nandkishor Innani Age: Major Occ: Household. R/o: Raichur.
7. Smt; Leelabai W/o Hariprasad. Malapani Age: 58 years. Occ: Household. R/o: Hydrabad.
8. Smt: Shakuntalabav W/o Rajagopal. Loya. Age: 40 years. Occ: Household. R/o: Inchalakaranii. Dist: Kolhapur.
9. Smt: Shantoshbai W/o Shamsundar, Asawa. Age: 35 years. Occ: Household. R/o: Shorapur.
10. Shri; Satyanarayan S/o Shivanarayan Bhang. Age: Major Occ: Agriculture. R/o: Shorapur. Dist: Gulbarga.
11. Shri: Maiiish S/o Govindram Bhang. Agt: 34 years Occ: Business of Solhapur, Maharastra state.
12. Shri: Narayan S/o Govandram Bhang. Age: 23 years. Occ: Student.R/o: Shorapur. Dist: Gulbarga.
..,,,„.. ..Petitioners,
AND:
1. Shri: Basappa S/o Shivabasappa Madanalli. Deceased represented by his Lrs.
la) Shri: Shivabasappa S/o Basappa Madanalli. Age: Major. Occ: Agriculture. R/o: Bailwad. Tq: Bailhongat. Dist: Belgatim.
Ib) Smt: Mallawwa W/o Basappa Madnalli. Age: Major. Occ: Household. R/o: Bailawad. Tq: Bailhotigal. Dist: Belgaum
2. Shop: Chturbhuj Mohanlal Zaver. k / Represented by Proprietors. "
2a) Radhabai W/o Mohanlal Zumvar. OfSangali.
2b) GhisalaE Mohanlal Zumvar of Sangali.
2c) Chaturbhuj Jagannath Zmuvar. OfSangali.
3. A shop Sidramappa Irappa Shivanagi. Represented by proprietors.
3a) Iswarappa Shidramappa Shivanagi. Age: Major. Occ: Business R/o; Athani.
3b) Virupaxappa S/o Shidramappa Shivanagi. Age: Major Occ; Business. R/o: Athani. Dist: Belgaum.
3c> Smt: Basawwa W/o Shidramappa Shivanagi. Age: Major. Occ: Household. R/o: Athani. Dist: Belgaum.
3d) Sampatkumar Shidramappa Shivanangi.
Age: Major Occ: Business. R/o: Athani. ''
Dist: Belgaum.
4. Textile house.
A cloth shop, Belgaum Represented by Its proprietor Shri: P.A Tendulkar. Age: Major. Occ: Business. Khade bazaar. Belgaum.
5. Bubulat S/o Jawanmal. Cloth shop , Bendhi Bazar \ Belgaum.
6. Lumbaji Jathaji Colth merchant, Bhendi bazaar Belguam.
I. Bansilal S/o Miiralidhar. "" Age: Major. Occ: Business. R/o: Bhendi Bazar Belgaum.
8. The General Manager, The Bailhongal Co op Bank Bailhongah
9. Rikappachand S/o Prabhudev Jain Age: iVlajor.Occ: Business. C/o: Ganesh Bangle store. Bazar road, Bailhongal.
1O. Smt: Basawwa W/o S.M.Huggi. Age: Major. Occ: Household. R/o: Kudasoniannavar Galli, Bailhongal.
II. Girijawwa W/o Basavarai Huggi. Age: Major. Occ: Household. R/o: Kudasoniannavar Galli. C'TS No: 1845. Veeraniallikarjuna Temple Bailhongal. Dist: Belgaum.
.Respondents.
APPLICATION UNDER SECTION 35 R/W 41 OF PROVINCIAL INSOLVENCY ACT OF 1920 R/W SECTION 151 OF C.P.C.
Sub: The petitioners_prayer for dlscharge_of annulling adjudication of insoly_engy ._ofStoj.LSnankarniai Cliandartmal 3/1955.
I.The address of the petitioners for the purpose of service of summons, notices etc is that of their counsel:
Sbri: J.K,Reza, M.A.LL B (Spl) Advocate,
House No: 1657, Koppadagalli Bailhongal.
n. That the address of the respondents is the same as given in the cause title for the purpose of service of summons, notices etc.
III. Herein the above named petitioners begs to submit as under,
1. That the deceased Sltri: Shankaralal Chandanmal Bhang a native of Bailhongal was earning on trade in cloths business. Unfortunately the said business said person suffered loss and became debtor ofRs: 24,935-lanna-9 pai. The details of debts are given in schedule A herewith this petition. As for as addresses which are ascertainable from the records of the respondents are given in the above cause title. Since the addresses being very old these petitioners crave leave to publish the notice this petition the local news papers of Mumbai. Sangli, Kolhapur and Bel gaum cities The schedule of petition properties of insolvency given in schedule B of this petition.
2. After sustaining loss said Shri; Shankaralal Chandanma] Bang was unable to liquidate the said debts of the respondent /creditors No: 2,
3,4,5,6, 7 and 8. Meanwhile some of the creditors obtained warrant of arrest of said debtor at Bailhongal Inevitably the said debtor moved a petition under insolvency act and he was adjudicated as insolvent on 28-1-1957 by the Hon'ble Civil Court. In pursuance of said judgment in IP.No: 3/1955 a permanent court receiver was appointed by then hon'ble Civil Judge Court (Sr.Dn) Belgaum now functioning as Civil Judge (Sr.Dn) Bailhongal. There were changes in the court receiver and the'last receiver'was Shri: A.G.]V1ahajan Advocate,, who seems dead now. The receiver was to administrate and manage the property of the insolvent now described the schedule B of this Petition. He was entrusted to raise yield and the income from the said properties and after deducting his legal fees the balance amount he had to deposit the civi] court and then to liquidate the debts of Creditors in proportionate .manner. Now in the long gap all the dues of creditors must have been liquidated. Bnt unfortunately there is no intimation either by this hon'ble court or from the court receiver regarding the liquidation of standing dues of the creditors till this day. There is a dereliction of duties on the part of court receiver.
3. The court receiver has received license fees for use and utilization of CTS No: 2223 and 2224 from respondent No: 9 in the similar way the court receiver has collected license fee for use and utilization of house bearing CTS No: 1845 from the respondents 10 and 11. In the similar way the Court Receiver has collected license fees for use and utilization of lands bearing Sy.No: 142. 150/2 and 150/4 of Bailwad village from the respondent 1 and his legal heirs. The said users are not ready to communicate to the court or to the creditors or to the present petitioners the total amount, if given by them to the court commissioner, with malicious intention to prolong their unauthorized use of schedule properties. Neither insolvent Shri: Shankaralal nor his present legal heirs, who are the petitioners here, have lost their right, title or interest in the schedule properties. It is also submitted that the respondents 1 or his legal heirs or respondent No:9 or respondents No: 10 ,11 have acquired any right or ownership in respective landed and house properties by any reasons except that they have to pay the license fee for use and utilization of the properties to the court receiver who has to dc legal duties of collection of yield and income till the debt is satisfied with due course of time, To the bad luck of insolvent the court receiver joined hands with respondent No: 1 and both of them involved the suit schedule landed properties in the dispute of land tribunal superficially. Therefore, now petitioners have power to move the hon'ble court for annulment of adjudication of insolvency and also for discharge of the debts and to obtain the constructive and actual possession of suit schedule properties from this hon'ble court, since the land tribunal has finally and effectively adjudicated that the respondent No: 1 a and Ib have no am occupancy rights and their form No: 7 has been correctly rejected. Therefore the petitioners are constrained to file the present petition for the needful actions,
4. The present petition is well within the time The insolvent was prevented to approach this hon'ble court for discharge since he had no money till his death to clear off the any remaining balance of arrears of the creditors, Further till his death of insolvent the dispute of the schedule landed properties was seized in the High Court of fCarnataka and as well as by land tribunal Bailhongal, Now the time is ripped for the present petitioners for discharge, because the matter has been adjudicated upon by the land tribunal Bailhongal in KLR/TRB-IO on 16-2-2004. After the said decision of the land tribunal Railhongal, the petitioners are finding for first time capable of remitting back the dues of their father's debt, if not completed even after the collection from the respondents 159J_0 and II. Therefore (he petitioners have sufficient grounds and reasons to file the preset petition for the discharge after some time after the decision in I.P.No: 3/1954. There is no any intentional delay on the part of .the petitioners in moving the present petition. There is no necessity to file any petition for condonation of delay since annulment of the adjudication of the insolvency can be done at any time either by hon'ble court or by court receiver or by the insolvent. Now after 16-2-2004, the present petitioners have ripe time to move for needful discharge as per law in order to avoid the legal complications with abundant care a separate application U/s 5 of the Limitation Act is filed along with the affidavit annexed herewith this petition.
5. The cause of action to this petition arose on 16-2-2004 when the land tribunal passed the order and or/on each subsequent day after the said order of the tribunal when the petitioners did not bear regarding the liquidation of due debts of the insolvent either from the court receiver.
6.JURISDICTION:
The disputed lands and suit house and shop are situated in the local limits of this hon'ble court. Therefore this hon'ble court has territorial jurisdiction to entertain and decide this petition.
7 COURT FEE:
A necessary court fee is paid herewith as per schedule II Article 1 1 (g> of KCF and SV Act of 1958. for the purpose of ancillary relief of correct in of records of the Schedule properties after the discharge order, a. separate court fee of Rs: 50 is paid under the same act as the corrections have to be made by the revenue authorities in the property records of the suit schedule sanded and house properties.
8, The present petition is also to be decided under the inherent powers of this hon'ble court since the intention of petitioners is to pa_y off past debt of their deceased father who was inevitably adjudicated upon as an insolvent. Therefore decision of sins petition is also based on equity and natural justice where pious obligation of devote Hindu sons of once insolvent father can be discharged. Under these circumstances the petitioners prays as under,
9. PRAYER:
Setting aside the contentions if any; of the respondents it is humbly prayed:
a) Kindly order of discharge be passed annulling the order of insolvency against the insolvent Shri: Shankaralal Chandanalal Bhang passed in LP.No: 3/1955 and then petitioners and the suit properties be freed from the liability of he debts by adjusting the amoxint deposited by court receiver in this regard recovered from respondent No: I, 9,10 and 11, and if there exists, any , balance to clear off the dues, the petitioners be allowed to deposit the balance amount so ordered by this hon'ble court.
b) To meet the ends of justice after the order of discharge as a consequent effect., the suit landed properties bearing No-142,150/2 and 1.50/4 of Bailwad village be taken from respondent No: la and Ib or any person on their behalf and be put in to the possession of the petitioners. And further the house and shop bearing CTS No: 2223 and 2224 of Bailhongal be taken from the opponent No: 9 and be put in to actual possession of the petitioners. And further the house bearing CTS No: 1.845 of Bailhongal town be put in to possession of petitioners by taking from the respondent No: 10 and 11 or any body on their behalf.
c) Means profits also be awarded from the respondent la , Ib, 9 ,10 and 11 from the date of petition till actual realization of the possession of the properties.
d) Consequent^ services of court receiver be recalled and records sof suit properties be ordered to be corrected.
e) Any other relief deemed fit be granted.
In the terms above prayer effective warrant of possession be issued and court bailiff be deputed to put the petitioners with the possession of schedule properties enumerated and described in Schedule B.
BAILHONGAL.
DATE:r,,/12/2004. P.A. HOLODER
OF PETITIONERS 2 TO 12
AND FOR HIMSELF.
VERIFICATION,
Herein I Shri; Balaji. S/o Shivanarayan @ Govardhan Bhang. Thy PA.Holder of the Petitioner "No: 2 to H Age: 3? years Occ~ Business and Agri Now residing at Railhongai solemnly affirm and state that the contents of above paras re true and correct to the best of my knowledge and belief. Same are read over, translated and explained to me in Kan
BAILHONGAL. PA HOLODER OF
PETITIONERS TO 2 TO 12
AND FOR HIMSELF.
Drafted and presented by
Advocate Bailhongal For petitioners.
Raj Kumar Makkad
(Expert) 02 November 2011
Come with brief facts or engage a local lawyer for resolving your 'bunch of queries'.
prabhakar singh
(Expert) 03 November 2011
i remember here before some time back on advise sought you were advised to move the court engaging a lawyer.i find your lawyer engaged in case is competent after going with his draft.Repose confidence in him.
Every Body here would not afford to read such a lengthy draft.Since in two hours he thinks he can attend 50 to 60 or even more queries.
