Report No. 26
Clause 131
This has been taken from section 124 of the Presidency Act. There is nothing corresponding to it in the Provincial Act, but there is no reason why it should not be incorporated.
Clause 132
This is taken from section 125 of the Presidency Act. It does not appear in the Provincial Act, but has been adopted, being a useful provision.
Clause 133
This has been adopted from the Presidency Act, section 116(1), as a useful provision, though there is no corresponding provision in the Provincial Act. The word "inserted" appears in the Presidency Act and has been retained. As an alternative the word "issued" can be used.
Clause 134
This deals with liability for misfeasance.
Section 82 of the Presidency Act provides that the court shall cause the Official Assignee to account for any misfeasance, etc., and may require him to make good any loss which the insolvent's estate may have sustained by reason thereof. It is considered, however, that the amendment made by the State of Bombay to this section makes a provision which is better. Under that amendment, the State Government is liable to make good all sums which the Official Assignee is liable to discharge. Thus, (i) the positive proposition making the State Government liable is enacted, and (ii) a negative proposition is enacted, namely, that where neither the Official Assignee nor his officers have contributed to the liability and none of them is guilty of negligence, then neither the Official Assignee nor the State Government is liable.
Incidentally, the adoption of this provision will bring the law in symmetry with similar provisions in the other statutes dealing with corporation sole. See, for example, section 39 of the AdminiStrator-General's Act, 1913, now section 38, Administrator-General Act, 1963.
The words "revenues of" (the State Government) used in the Bombay amendment have not been adopted, in view of the constitutional provisions1 relating to the Consolidated Fund.
Section 82A, etc. (Bengal and Madras amendment).-It is considered unnecessary to add sections 82A, 82B and 82C inserted by the Bengal Amendment or sections 82A and 82B inserted by the Madras Amendment, whereunder the State Government is to bear the Official Assignee's expenses of litigation, etc., where the estate is insufficient to bear the expenses. Except in so far as the matter falls under the clause as adopted, the revenue of the State need not be made liable for costs of such proceedings2.
1. See Article 266(1) of the Constitution.
2. The Official Assignee can protect himself by obtaining indemnity from creditors. See Mulla, (1958), p. 804, para. 849.
Clause 135
This is based upon section 118 of the Presidency Act. There is no similar section in the Provincial Act. It has been adopted as useful.
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