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TMI Blog1957 (1) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... ated that as there was no money to the credit of the estate it was not possible for him to take out an application against the insolvent's wife and also against the insolvent for rendition of accounts. 3. The insolvent filed a counter in which he stated inter alia that as his creditors put pressure upon him he sold the house and used the money he thus obtained to discharge various debts of his. The allegation that he had on hand ₹ 2,100 is not at all true. 4. I enquired into this matter and on 3-9-1956 recorded the finding that the insolvent had failed to account for a sum of ₹ 2,490. 5. I also made a direction requiring the insolvent to bring back the money into Court. He was given four weeks to comply with the order. This order was not complied with, but, further time was granted and on 5-11-1956 more time was asked for to bring in the money. The matter was adjourned to 3-12-1956 and even on that date the money was not brought in. So, on that date I issued the following notice to the insolvent ; "Notice to the insolvent M. Mohideen. On 5-4-1956 the learned Official Assignee took out Application No. 295 of 195G for an order directing you to render an acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 2 requires that the application together with a copy of the order which is sought to be enforced, and a list of the affidavits intended to be used shall be personally served upon the person in contempt. In the present case, said Mr. DevaNathan, the provisions of these two rules have not been complied with and in consequence there can be no valid order made against the insolvent. 9. In respect of this argument the learned Official Assignee pointed out -- and I think quite correctly -- that it ignores the proviso to the first subsection of Section 90 of the Presidency Towns Insolvency Act. That proviso runs : "nothing in this sub-section shall in any way limit the jurisdiction conferred on the Court under this Act." Order XIX (XXI?) of the Original Side Rules cannot, therefore, be read as in any way reducing or curtailing the jurisdiction conferred on the Court by the Insolvency Act. In this connection the learned Official Assignee referred to the decision in Bhuramull Banka v. Official Assignee, Bengal. ILR 47 Cal 56: (AIR 1920 Cal 395). In that case the insolvent appeared before the Official Assignee on 9-4-1919 and was examined by him with regard to his property, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt for an order for the insolvent's attendance, that the Court's order should have been in writing, that it should have been served personally on the insolvent, that it should have contained a notice that unless he complied with it he would be committed for contempt, and that the insolvent could not be committed unless the above procedure had been carried out.' And then, on page 63 (of ILR Cal): (on p. 396 of AIR), he observed : "There is nothing in the section to show that an order of the Official Assignee to attend his office in pursuance of Section 33(2)(c) must be in writing. Consequently, the order given verbally on the 9th April was a valid order and there was then a duty upon the insolvent to comply with the order. This section further provides in Sub-section (4) that if the insolvent willfully fails to perform the duties imposed upon him by the section, he shall, in addition to any other punishment to which he may be subject, be guilty of a contempt of Court and may be punished accordingly. So that in this case when the insolvent failed to attend at the Official Assignee's office in accordance with the order of the Official Assignee, he failed to perf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was given four weeks time to bring in the money. Some more time was asked for and that was granted. On 5-11-1956 more time was asked for and that too was granted. The notice requiring him to show cause was explained to him in Court and also served on him in person. Therefore, the purpose for which the rules in Order XIX (XXI?) have been framed has been satisfied in the present case. 13. Mr. Devanathan next argued that in the present case the insolvent has been ordered to bring in a certain amount of money and that an order for payment of money is outside the scope of Section 33(4) of the Presidency Towns Insolvency Act. That subsection runs as follows: "If the insolvent willfully fails to perform the duties imposed upon him by this section, or to deliver up possession, to the Official Assignee of any part of his property, which is divisible amongst his creditors under this Act and which is for the time being in his possession or under his control, he shall, in addition to any other punishment to which he may be subject, be guilty of a contempt of Court, and may he punished accordingly." Mr. Devanathan argued that the words used in the section are "deliver up po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... executed. 15. That even orders For payment of money can be enforced by contempt proceedings will appear from the decision in In re Pickard, ex parte, Official Receiver, 1912-1-K. B. 397. That was an appeal against, the refusal of the county court Judge to commit the debtor to prison upon the ground that the proper process was by attachment against the defaulting debtor and that it was necessary to the process of attachment under the county court rules, 1903, that the person so proceeded against should have been personally served with a sealed copy of the order which he is alleged to have disobeyed with a notice endorsed upon it warning him of the consequences of disobedience. Before the appellate court it was contended on behalf of the debtor that a motion to commit was not the appropriate process in that case. On behalf of the Official Receiver it was contended that the county court Judge had jurisdiction to enforce an order made under Section 53, Sub-section 4 by committal. The court observed : "In my opinion the contention of the Official Receiver is correct. In the first place, the order under Section 53. Sub-section 2 seems to me to be an order made 'in relation to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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