065-NLR-NLR-V-39-DE-SILVA-v.-DE-MEL.pdf
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FERNANDO A.J.—de Silva v. de Mel.
1936
Present: Moseley J. and Fernando AJ.
DE SILVA v. DE MEL.C. Kalutara, 293.
Insolvency—Application to Supreme Court to recall certificate—Alternativeremedy open to applicant—Application to District Court—OrdinanceNo. 7 of 1853, ss. 129, 133.
The Supreme Court will not entertain an application to recall acertificate under section 133 of the Insolvency Ordinance where it isopen to the applicant to move the District Court under section 129 ofthe Ordinance for the same purpose.
In re M. A. Perera (5 N. L. R. 291) followed.
HIS was an application under section 129 of the Insolvency Ordinance
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for the recall and cancellation of the certificate of conformityissued to the respondent by the District Court of Kalutara.
M. T. de S. Amerasekera, for applicant.
JS. J. V. Chelvanayagam, for respondent.
November 16, 1936. Fernando A.J.—
The applicant applies to this Court under section 129 of Ordinance No. Jof 1853 for a recall and cancellation of the Certificate of Conformityissued to the respondent in the District Court of Kalutara, and the groundson which that application is made are set out in the petition datedJanuary 11,1936, and may be summarized as follows: — (i) The
petitioner was a creditor of the respondent, and had obtained judgmentagainst him in a sum of Rs. 2,877.66, but his name was not disclosed asa creditor by the respondent in his statement of assets and liabilities,with the result that .the applicant had no opportunity to prove his debtor oppose the grant of a certificate to the respondent, (ii) Therespondent has withheld from Court a full and complete list of his assets,(iii) The respondent has made a false declaration of his liabilities, inthat certain persons whose names appear as creditors now say that theyhave no claim against the respondent, (iv) The District Court ofKalutara had no jurisdiction to entertain the insolvency proceedings.
At the argument, Counsel for the applicant stated that the respondenthad carried on business within the jurisdiction of the District Court ofKalutara, and that Counsel did not propose to press the objection on thatground. Before proceeding with these objections, it is necessary torefer to an argument submitted by Counsel for the respondent, namely,that in the circumstances as set out in the affidavit of the applicant,the remedy is not by an application under section 129, which is to be usedonly in special circumstances. He pointed to section 133 which givesjurisdiction to the District Court to refuse or suspend a certificatealready allowed upon application on proper material. It seems to me-that this application could have been made by the applicant in theDistrict Court of Kalutara and in view of the existence of that section,.
Cur. adv. vult.
FERNANDO A.J.—de Silva v. de Mel.
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it seems to me that he cannot apply to this Court under section 129.The remedy provided by section 129 will not lie, or at any rate this Courtwill not exercise jurisdiction under that section, where the applicanthas another remedy. The judgment of this Court in In re M. A. Perera'is to the same effect. As Moncrieff A.C.J. said in that case even if theSupreme Court has power to entertain the application under section 129,it is more proper for the applicant to proceed under section 133.
Even if we are disposed to consider the application, I do not thinkthe applicant has placed sufficient material before us to entitle us torecall the certificate issued to the • respondent. With regard to thestatement that the respondent failed to disclose the petitioner's name asa creditor, it is clear from the copy of the Balance Sheet in exhibit Bthat the name of the applicant's brother, G. A. de Silva, is mentioned asone of the creditors, and the debt due to him is said to be Rs. 2,877.66.It is clear from exhibit A that the applicant claimed this sum of moneyas an endorsee of certain cheques drawn by the respondent in favourof G. A. de Silva, and I see no reason why we should not accept thestatement of the respondent that he did not realize that the applicantG. A. de Silva had become his creditor.
With regard to the contention that the respondent has made a falsedeclaration with regard to his liabilities, the position of the applicant isthat certain persons have been named as creditors who make no claim,and he refers particularly to the case of E. B. Creasy & Co., againstwhose name the balance sheet contains an item of Rs. 95. There is noexplanation of this in the affidavit filed by the respondent, but I do notsee what the insolvent stood to gain by adding this name and thisamount to his liabilities, and I am not satisfied that the name of thiscreci- -cr was inserted with real fraudulent intention.
With regard to the objection that the respondent had not disclosedall his assets, there seems to be some difference of opinion between theapplicant and the respondent. The respondent, however, persists in thestatement that he has no other property, and that even if the entriesin the land register show some properties in his name, he has no claimto them, and that’ he has parted with his rights in them. Mr. Chel-vanayagam for him contends on this point that all properties belongingto the respondent vest in the assignee under section 71 of Ordinance No. 7of 1853, and that the assignee can deal with the property even after theallowance of the certificate. It is not alleged that the insolvent isconcealing any property or has parted with it fraudulently, and in viewof these circumstances, I do not think this is a matter which wouldjustify a recall of the certificate that has been issued. For these.reasons,I come to the conclusion that even if this Court has power undersection 129, this is not a case in which that power should be exercised.The application is therefore dismissed, and the appellant will pay to therespondent the costs incurred by him in these proceedings.
Moseley J.—I agree.
Application di§ptjsse&
1 5 N. L. R. 291.