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TMI Blog1915 (8) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... es of trust. The learned Judge stated that he would have tried the insolvent in respect of these assignments under the penal Section 103, if it had not been for the decision of the House O Lords in Sharp v. Jackson [1899] A. which seemed to render a trial on a charge of fraudulent preference hopeless. Nevertheless the learned Judge, because he believed that in almost all cases where the discharge was suspended under the present law, the insolvent had, as a matter of course, been granted protection for the period of suspension, granted protection for twelve months out of the period of two years which would elapse between the order refusing discharge and a fresh application for discharge by the insolvent. 3. It is clear that the Court has a discretion in the matter. If an application for protection was necessary in April under Section 25 the Court could have refused it for good cause. If ever there can be such good cause, it seems to me to exist in the present case. There is nothing to be said for the insolvent in face of the findings of the learned Judge. We are moreover informed by the Official Assignee that the learned Judge is mistaken in thinking the insolvent's assistanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case it was made by my learned brother, Davar J., whose experience in the administration of the law of insolvency is far greater than mine. It is, therefore, with sincere diffidence that I find myself compelled to take another view; and since we are differing from Davar J., I desire to state my reasons in my own words. The conclusion which I reach is based entirely on Davar J.'s judgment as to the character of this insolvency and on the consequences which seem to me to follow from that character. On this point I rely on the following passages in which the learned Commissioner has given his reasons for refusing the respondent's discharge. The Official Assignee in his report says that the insolvent mixed up the monies received by him as receiver with his own moneys. The insolvent on 26th October 1913, a day before he filed his petition in insolvency, assigned over and transferred a good debt due by Maneklal Panachand to himself to the heirs of Esa Khalifa of whose estate he was receiver. And by this act a sum of ₹ 29,000 was disposed of a day before his insolvency. It further appears that, during the time the insolvent was carrying on business, he was entrusted by va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regarded it, and of dealing with his own and other people's moneys in the reckless manner in which he has done, that such a man as a merchant is a danger to the public. His assets are not equal to four annas in the rupee. The Official Assignee reports that in his opinion the insolvent cannot be held liable for his assets not being equal to four annas in the rupee on his unsecured liabilities. I differ from that conclusion altogether. It seems to me there can be no question whatever that the insolvent is solely and Wholly responsible for his present state of affairs... There can be no question that the insolvent continued to trade when he must have well known that he was in insolvent circumstances. A man does not incur debts to the extent of twenty nine lacs of rupees without realising that he is insolvent, and a debt of this description is not incurred in a day or a month. His indebtedness and insolvency must have been growing and growing continuously as every month of his reckless life progressed, and be must have been conscious, long before he filed his petition, that he was living a riotous and extravagant life at the expense of his creditors. He continued his business right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is merely this, that, in exercising that discretion, it is relevant and proper for the Court to have regard to the character and circumstances of the insolvency. Here the insolvency was, as I have shown, of a flagrantly culpable kind, being the result of gross extravagance accompanied by grave malpractices and a total disregard of the creditors whose money was squandered. That protection should ordinarily be granted, does not signify here, for this is an extraordinarily bad case; and if it is not refused here, it must follow that it could never be refused, a consequence which, in my opinion, would conflict with the provisions of the section. I must add that the recent commercial history of Bombay is not such as to encourage the Courts to interpret the Act in a manner calculated to favour reckless speculation with other people's money; and that, I think, would be the effect of allowing insolvents to suppose that, to whatever lengths they may go in misconduct or dishonesty, they may count on immunity from the one fear that might act as a deterrent, the fear of the stigma of imprisonment. It is, in my opinion, no answer to say that the creditors would be batter off if the insolve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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