026-NLR-NLR-V-48-IBRAHIM-BAI-Appellant-and-HERFT-et-al.-Respondents.pdf
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SOERTSZ J.—Pfrdhim Bai v. Herft.
1942Present: Soertsz and de Krester JJ.
IBRAHIM BAI, Appellant, and HERFT, et al., Respondents.
77—D. C. Kandy, I 3.
Insolvency—Grant oj certificate to insolvent—Right of. a creditor to prove adebt thereafter—Insolvency Ordinance, s. 93.
A creditor is entitled to prove a debt in the course of an insolvency-case even after the granting of a certificate to the insolvent, providedhe obtains from the Court a sitting for the proof of the debt after duenotice thereof has been given.
^ PPEAL from a judgment of the District Court of Kandy.
N. Nadarajah, K.C. (with him H. W. Thambiah), for the proving-creditor, appellant.
No appearance for the proved-creditors, respondents.
March 6, 1942. Soertsz J.—
This is an appeal by one Ibrahim Bai who, professing to be a creditorof the Insolvent in a sum of Rs. 1,560, sought to prove that debt in thecourse of an insolvency case. He made his application on April 4, 1941.The learned District Judge refused to allow this application on theground that it was too late for him to prove a debt in view of the factthat a certificate in the 3rd class had been granted to the Insolvent.The learned Judge appears to have taken the view that once a certificateis granted there is in effect a termination of the insolvency proceedingsand that thereafter it was not open to anyone to come in claiming toprove a debt.
This view appears to me to be unsupported by the law. Section 93is relied on by Counsel for the appellant as enabling his client to come inat any time to prove his debt. This view is supported by the commentaryin Archbold on Bankruptcy, page 192, 1865 Edn. The comment is■ made on a provision upon which our own. Insolvency Ordinance is based.
Me era Pulle v. Gooneratne.
77
It is to this effect. “ By rule .53, every sitting held for making a dividendof a bankrupt’s estate shall be a, sitting for proof of debts and the noticeof such sitting in the London Gazette shall express that debts may beproved at such sitting. Therefore, there is no time, in fact, limited forproving ; if the creditor proves at any time before a final dividend isdeclared, he will be entitled to his dividend, and even where a creditorthrough accident omits to prove at the final dividend, he will be permittedto prove but without disturbing any payments made by the assignee,and placing the creditors not paid in the same situation as if the creditorhad originally proved.”
It seems clear, therefore, that it is open to the appellant to prove thedebt he seeks to prove provided he obtains from the Court a sitting for theproof of the debt after due notice thereof has been given in the Government.Gazette and in such other manner as the Court may deem fit.
The appeal is therefore allowed and the .case is remitted for that purpose..
There will be no costs of appeal.
de Kretser J.—I agree.
Appeal allowed.