Report No. 26
Clause 25
This corresponds to section 32 of the Provincial Act and section 34(1), Presidency Act. The latter has been mainly followed.
The section of the Presidency Act is a bit wider than that in the Provincial Act, because it allows the court to issue the warrant of arrest not only where the insolvent has absconded but also for removal, etc., of property. An attempt has been made in the clause under discussion to combine the useful features of both the Acts. Accordingly, power to issue the warrant will, under the clause, be available where a person has absconded (or is about to abscond as in the Presidency Act) or has departed (as in the Provincial Act) or is about to depart from the court's jurisdiction or has removed or is about to remove his property as in the Presidency Act or has concealed or is about to conceal or has destroyed property (as in the Presidency Act) or is about to destroy property.
A few unnecessary refinements have been omitted.
Omission of section 34(2), Presidency Act.-Section 34(2) of the Presidency Act1 provides that no payment for compensation made or security given after arrest under this section shall be exempted from the provisions of the Act relating to fraudulent preferences. Since, however, the section relating to fraudulent preferences-section 56 of the Presidency Act, (corresponding to section 54 of the Provincial Act)-does not come into operation except in respect of transactions entered into before the presentation of the insolvency petition2, it is not understood what useful purpose would be served by section 34(2) of the Presidency Act, which can have application only after adjudication. It has, therefore, been omitted.
1. A similar provision in the English Act is section 23(2), discussed in Williams, p. 367, under section 44.
2. Cf. Mulla, (1958), p. 643, para. 651.
Clause 26
1. This corresponds to section 35 of the Presidency Act. (There is no such provision in the Provincial Act.)
2. Instead of "post letters" and "parcels" the expression "postal articles" used in the Indian Post Office Act, (1898) has been adopted, as comprehensive.
3. The words "from time to time" (not usually used) have been retained, as in the context their removal would create doubts, in view of the subsequent words "not exceeding three months".
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