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Report No. 26

Clause 81

Sub-clause (1).-Is based on section 122, Presidency Act.

Sub-clause (2).-Is based on section 123, Presidency Act.

Clause 82

This is based on sections 88 and 89 of the Presidency Act (which correspond to section 67A of the Provincial Act). The language of the Presidency Act has been followed1.

1. Section 67A was inserted as a result of the recommendation made in the Report of the Civil Justice Committee, (1935), Chapter 14, para. 19.

Clause 83

General.-This is based on section 74 of the Provincial Act and also on section 106 of the Presidency Act. The jurisdiction for summary administration has been fixed for the Presidency towns at five thousand rupees (instead of existing rupees 3,000 under the Presidency towns Act, 1909). For other places, it has been increased from rupees five hundred to two thousand. These changes have been made in view of fall in the value of money.

Special points-Sub-clause (1).-It has been provided that on the admission of a petition, falling within this section, the Official Assignee shall stand automatically appointed as receiver, with powers analogous to those of a receiver appointed by Court. It is also considered that publication of notices and framing of schedules should not be dispensed with by a mandatory provision in the Act. This involves omission of section 64(i) and (iii), Provincial Act. The provision regarding committee of inspection has been taken from section 129(ii) of the (English) Bankruptcy Act, 1914, as a useful provision.

It is considered that an appeal with the leave of the Appellate Court should be allowed. That has been provided. The Presidency Act allows an appeal with the leave of the court of first instance, but in India generally leave obtained is that of Appellate Court.

Sub-clause (2).-As regards revocation of the order, opportunity has been taken to combine the language both of the Presidency Act and of the Provincial Act, so as to make two points clear:-

(i) the court can revoke the order for summary administration at any stage, and

(ii) from the date on which order is revoked, the normal provisions will come into operation.

Omission of section 196(1), proviso, Presidency Act

Section 106(1), proviso, of the Presidency Act bars the modification of the provisions relating to discharge. It is considered that no such restriction is necessary. It has, therefore, been omitted. It is better to leave the matter to the rule-making body.

Clause 84

1. This is based on section 108, Presidency Act. (There is nothing corresponding to it in the Provincial Act.)

2. In sub-clause (1), the words "had been alive" have been replaced by "if the debtor had been alive" for clarity.

3. The marginal note has been slightly changed, as it is considered that the existing words "persons dying insolvent" are not apt.

Clause 85

1. This is based on section 109 of the Presidency Act. There is nothing corresponding to it in the Provincial Act. It has been adopted as a useful provision.

2. Provisions regarding Official Assignees, and power to require information regarding insolvent's property and effect of insolvency on antecedent transactions, etc., should apply in relation to the mode of administration in insolvency of estates of deceased persons. Necessary change has been made. Compare section 155(4) and (4A) of the Australian Act. As to examination of witnesses, compare also section 130(5), English Act1.

1. The existing position is discussed in Mulla, (1958), p. 720, para. 746.

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