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TMI Blog2008 (12) TMI 831X X X X Extracts X X X X X X X X Extracts X X X X ..... it No. 2598 of 2006. 2. The case of the respondent-plaintiff in short is that he advanced a total sum of Rs. 8 lakhs to the appellants-defendants as and by way of friendly loan. The appellants executed 8 promissory notes in favour of the respondent. The appellants failed and neglected to pay back the said amount. Hence the respondent filed the instant suit on the basis of the promissory notes. 3. It is not necessary to give the details of various orders passed by us in this appeal. Suffice it to say that since this is an appeal challenging a money decree, we asked learned Counsel for the appellants whether the appellants are willing to deposit an amount of Rs. 10 lakhs in this Court. On 21/10/08 the appellants were present in the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arty or Official Assignee will have to make an application for leave under Section 17 to the Insolvency Court and it is only pursuant to the order passed by the Insolvency Court, can the Official Assignee intervene in the matter. Mr. Jain further submitted that inasmuch as the present appeal is filed challenging a money decree, in law the appeal cannot be prosecuted by the Official Assignee. 6. It is necessary to have a look at Section 17 of the said Act, which states what is the effect of an order of adjudication. It reads as under: 17. Effect of order of adjudication.- On the making of an order of adjudication, the property of the insolvent wherever situate shall vest in the official assignee and shall become divisible among his cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a plaintiff in any suit which the assignee or receiver might maintain for the benefit of his creditors, shall not cause the suit to abate, unless such assignee or receiver declines to continue the suit or (unless for any special reason the Court otherwise directs) to give security for the costs thereof within such time as the Court may direct. (2) Procedure where assignee fails to continue suit, or give security.- Where the assignee or receiver neglects or refuses to continue the suit and to give such security within the time so ordered, the defendant may apply for the dismissal of the suit on the ground of the plaintiffs insolvency, and the Court may make an order dismissing the suit and awarding to the defendant the costs which he h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court to dismiss the suit where it has abated under Sub-rule (1) and Rule 8 is made applicable to appeals by Rule 11. While answering the question whether it can be said that the Official Assignee might maintain the appeal for the benefit of the insolvent's creditors, Beaumont, C.J., referred to Section 68(1)(d) of the said Act and speaking for the Bench observed as under: By Section 68(1)(d) of the Act the Official Assignee has power to institute, defend or continue any suit or legal proceeding relating to the property of the insolvent. A suit relating to the property of the insolvent, in my opinion, means a suit which, if successful, will increase the assets distributable amongst the creditors, or the defence of which may prevent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee would be necessary party to the suit relating to the property of the insolvent . The term relating to cannot be taken to mean affecting . Therefore, a suit, such as a suit for money decree in the instant case, which might ultimately result in a decree which if executed or sought to be executed would be payable out of the assets of die insolvent and thereby indirectly, affects his property is not contemplated by Section 68(1)(d). 9. The ratio of the above cases is clearly attracted to the present case. The appeal merely relates to a money claim against the insolvent and does not fall within the powers given by Section 68 of the said Act to the Official Assignee. The Official Assignee cannot maintain the appeal. The appeal cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in English by him. In any case the case of the appellants that the promissory notes are fabricated is difficult to digest. Nothing prevented the appellants from making an application for leave to defend. The impugned order indicates that when the order was passed both the appellants were present. Nothing prevented the appellants from putting forward their case. The order does not indicate that any such attempt was made by the appellants. The outright denial of the respondent's case does not stand to reason. It is difficult to digest that all the 8 promissory notes are fabricated. In our opinion, learned Single Judge has rightly decreed the suit. The appeal must be dismissed for the reason that the appellants have committed a breach ..... X X X X Extracts X X X X X X X X Extracts X X X X
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