Report No. 26
Clause 17
General.-This deals with disposal of a petition filed by a debtor.
Sub-clause (1).-This follows section 25(2) of the Provincial Act. The proposition is not embodied in so many words in section 15(1) of the Presidency Act. But, obviously, where the debtor is not entitled to present the insolvency petition, the petition must be dismissed under that Act also1.
Sub-clause (2).-This follows section 27(1), part, of the Provincial Act and section 15(1), part, of the Presidency Act. The order of adjudication is to be made only if the court is satisfied of the right of the debtor to present the petition. This proposition, embodied in a negative form in the Provincial Act, section 25(2), is put in a positive form as in the Presidency Act, section 15(1).
"Shall" and "may".-See discussion2 on clause dealing with creditor's petition.
Wrong court.-Section 15(1) of the Presidency Act contains the words "unless in its opinion the petition ought to have been presented before some other court", etc. These have been omitted, as under the Civil Procedure Code, return of a plaint, etc., for presentation to the proper court is provided for.
1. See Mulla, (1958), p. 175, para. 171, last sentence.
2. See notes to clause 16.
Clause 18
General.-This corresponds to section 27(1), part and section 27(2), P.A.
Sub-clause (1).-Under the Presidency Act, the period for applying for discharge is prescribed by the rules1. Under the Provincial Act the period has to be specified in the order of adjudication. It is, however, possible that the court might through oversight omit to mention the period in the adjudication order, and to meet such cases, the court should have a power to specify the period in a subsequent order. Necessary provision has been made.
Sub-clause (2).-It is desirable that the power to extend the period should be limited to cases where an application for extension is made within the time (originally) limited for applying for discharge. The necessary change has been made. (At present, extension can be granted even after expiry of the original period.)2
1. See Mulla, (1958), p. 322, para. 350, foot-note. See Bombay Rule 136 (18 months) and Calcutta Rule 142A (18 months), Mulla, pp. 1128 and 1074. In Madras, Order VIII, rule 2, mentions 18 months or such other period as the court may fix.
2. The subject has been discussed by Mulla, (1958), pp. 324-326, para. 351, where the conflict of decisions on the subject is also noted. His suggestion is for providing that the court's power should be limited to cases where the application is made before expiry.
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