9911796707
TMI Blog1918 (11) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... he plaintiff put in a claim petition but it was dismissed on 2nd December 1913. On a debtor's petition presented in the District Court on 15th September 1913 the 2nd defendant was on 12th December 1913 declared insolvent. The Official Receiver sold the suit property by auction on 31st July 1914 and the 3rd defendant purchased it. 2. The plaintiff brought this suit to establish her title and has been successful in the lower Courts in obtaining a declaration of her title, both the Additional District Munsif and the District Judge finding that the sale by plaintiff's husband in her favour was a genuine one for good consideration. They also held that the sale by the Official Receiver was a nullity for want of a vesting order, citing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 916 it was held by Phillips and Krishnan, JJ., that a Receiver appointed by a Court of Insolvency could bring a regular suit in another Court to set aside a transaction under Section 36 of the Provincial Insolvency Act, but with due respect, I feel doubt whether that decision was right. I do not think that a special statutory provision whereby District Courts and certain other Courts are invested by notification of the Local Government under Section 3(1) with the power, among other powers, of invalidating certain defined transactions of insolvents should be extended to all Courts of original jurisdiction whether notified under this Act or not. Otherwise conflicts might arise between the decision of a Court sitting in insolvency and the judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Section 37 of the Provincial Insolvency Act only means ' voidable , although that section leaves the Court no discretion in the matter, by declaring that every transfer of property which amounts to a fraudulent preference shall be annulled by the Court, the words in Section 36 being may be annulled . It is enough for this appeal that void in Section 36 means voidable. 6. The appellant's Pleader, citing the Full Bench case of Lakshmi Doss v. Roop Laul 17 M.L.J. 19, argues that he should be allowed to raise the voidability of the transaction in plaintiff's favour as an equitable defence in this suit, and further contends that the Official Receiver, when he sold the insolvent's property by auction, sufficiently ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not have jurisdiction to entertain a suit if brought by the defendant to obtain the relief of cancellation based on the right put forward as the basis of the equitable defence. Such an equitable defence may be successfully pleaded in some cases, even though a suit to obtain the relief based on the facts on which the defence is based may be barred by limitation, but I do not think that where the right to grant such a relief is, by Statute Law, vested in a Special Tribunal, the defence could be pleaded before another Tribunal not vested with such power, I, therefore, agree with my learned brother that a transfer falling under Section 36 of the Provincial Insolvency Act remains valid till set aside by the Insolvent Court at the instance o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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