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TMI Blog1981 (3) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and the said Job Simon had made themselves unavailable for being contacted at the office or at the works. This contention was not accepted by the learned single Judge who disposed of the insolvency petition and hence we need not deal with that aspect of the matter in this judgment. As regards the other ground an order of adjudication was viz., under S. 9(g) of the stated by respondents 1 to 3 that the appellants owed them a sum of Rs. 6,000/- in the aggregate and the said, sum besides being a liquidated amount was also payable immediately. But in spite of it, in response to the at tempts made by them through their representative Mr. Motiram to collect the outstanding amount, the first appellant had sent a letter on 21-6-1976 where in it was stated that the appellants were suspending payments for the present to all the creditors in view of the fact that they had suffered misfortunes. This ground was found to be a sustainable one by the learned single Judge and hence he allowed the petition and passed an order of adjudication against appellants 1 to 5. In so far as, Job Simon, the sixth respondent in the insolvency petition is concerned, it was held that he was not a partner of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contention that the suspension of payment was not applicable to the general body of creditors but only to a limited class of creditors had also been found to be an, untenable proposition. As regards the other grounds, viz., about the amount not being immediately payable to respondents 1 to 3 and about the action of the fourth plaintiff not binding on the other appellants, the learned counsel stated that those contentions had not at all been raised before the learned single Judge and hence the appellants are not entitled to put forth these contentions for the first time in this appeal. 5. We shall proceed to examine the various contentions put forward by the appellants counsel in seriatim. Taking up in the first contention, it was stated that Motiram, who had been examined as P. W. 2, was acting as an agent for the Multani Bankers and ' it was through him the appellants had obtained credit from several Multani bankers. The names of the various Multani Bankers from whom amounts has been borrowed are set out in Exs.P 5 and P 6 and among them respondents 1 to 3 are creditor Nos. 3, 4, and 6. P. W. 2, has gone into the witness box and has vehemently denied the suggestion tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s every likelihood of the fourth appellant himself having realised that payments cannot be effected to any of the creditors and, hence there should be a general suspension of payments. We are, therefore, not persuaded by the contention that Exs. P. 5 and P. 6 had been clearly obtained by P. W. 2 and the fourth appellant had not intentionally used the words relating to suspension of payments and furthermore he was not aware of the consequences of using such words. The first contention has, therefore, to fail. 7. As regards the second contention; learned counsel for the appellants would say that respondents 1 to 3 had collected advance interest and the instalment payments totalling to Rs. 2000 to each of respondents 1 to 3 was not fully payable and in any event the appellants had time till 16-7-1976 to make the payments. Such a contention has not been raised before the learned single Judge. On the other hand, the appellants have proceeded on the basis that the last two instalments to respondents 1 to 3 were fully payable and the payment had to be made on 16-6-1976, and 16-7-1976. It must be borne in mind that Exs. P. 5 and P. 6 have been written on 21-6-1976, which is five days af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by the fourth appellant in the witness box, there is hardly any scope for the appellants to contend that the suspension of payment was limited to a class of debtors and as such the requirements of Section 9(9) of the Act were not fulfilled. Hence the third ground of attack has also to fail. 9. Taking up the last of the grounds it was on this aspect of the matter the appellants considerable stress. He, argued that there was nothing to show that Exs. P. 5 and P. 6 had been written by the fourth appellant on behalf of all the partners of the firm and such being the case, the other partners cannot be made liable in insolvency for any dereliction committed by the fourth appellant. In support of such a contention, the learned counsel cited various authorities. The cases cited by the learn d counsel and the ratio laid down in them are as follows Gopal Naidu v. Mohanlal Kanyala, ILR (1926) Mad 189: AIR 1926 Mad 206 . It is a question of fact in each case whether the act of one partner in closing the business of the firm and thus committing an act of insolvency so far as he is concerned is imputable to another partner so as to entitle the creditors of the firm to get the other also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his firm has suspended or is about to suspend business stands on a different footing And it is prima facie a joint act, on behalf of all persons who are liable as partners in that firm unless they can show that they were solvent and able to pay the debts of the firm and for which they were liable. The correctness of this decision has, however, been doubted by Mullah at page 106 of the Law of Insolvency in India. It has been pointed out in the commentary that the initial burden of proving an act of insolvency by all the partners lies upon the person who alleges the commission of such act and it is not for the partners to prove that the individual act of one of the partners will not bind the rest of them. The second case cited by the respondent's counsel is Chanahalu Siva Reddi v. Official Receiver of Bellary, 166 Ind Cas 80 : AIR 1937 Mad 13 . That is a Bench decision of this court. The facts were that a business belonging to three brothers was carried on by the eldest brother. The eldest brother had secluded himself and had also expressly stated to the creditors that he could not pay their debt. The two younger brothers contended that they cannot be adjudicated on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his brothel the third appellant had written the letter to the dictation of PW 2 and subsequently typed the letters. Hence the third appellant must have had knowledge of the contents of the letter and he had actively associated himself with the fourth appellant in the typing and i.e of the letters. Appellants 2 and 5 are ladies and the second appellant is the wife of a brother of the fourth appellant. They had admittedly left the management of the firm with the fourth appellant. The letters, Exs. P. 5 and P. 6 also purport to have been issued behalf of all the partners of the firm. This inference may be drawn from the following fact. While the fourth appellant has referred to C. J. Simon as his father and Mrs. Varghese Simon as his wife and the works manager Sri C. Job Simon as his elder brother, he has used the plural term 'we' when he comes to the statement regarding suspension of payments. We have already extracted the relevant sentences in an earlier portion of this judgment. Having regard to the words used in the letter and the fact that the third appellant had also participated with the fourth appellant in the preparation of the letter, it is difficult for us to accept ..... X X X X Extracts X X X X X X X X Extracts X X X X
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