K.P.S. Karuthan Chettiar vs R.M.M. Raman Chetti

All that the creditor did in this case was to move the Court to take action u/s 43, Provincial Insolvency Act. The District Judge might very well

have asked the Receiver to investigate the allegations of fraud but there was no occasion for him to dismiss the creditor''s petition without staking

any reason except that the creditor was not interested in making the application, and without any enquiry and before receiving a report from the

Receiver.

In Iyyappa Nainer v. Manicka Asari ILR 40 M. 613 the Court took cognizance of the complaint, held an enquiry and refused to frame a

charge. We do not question the authority of this decision for the proposition that a creditor is not a ""person aggrieved"" by the final order passed

after enquiry by the Court u/s 43.

In Gujar Shah v. Barkat Ali Shah I.L.R.(1921) 1 Lah. 213 and Palaniappa Chett v. Subramaniam Chetti (1920) M.W.N. 135 the omission in

Section 43 to give creditors a right to move the Court by application similar to that provided by Section 13, is made a ground for holding that a

creditor has no ""legal grievance"" if the Court declines to entertain his petition. With due respect, we think that no words are required to enable a

creditor to move the Court u/s 43, and that if Courts were not so moved either by the Receiver or one of the creditors cases of thus taking

disciplinary action against debtors in the exercise of their insolvency jurisdiction would be very few and far between. As the petitioner was in our

opinion ""aggrieved"" by the lower Court''s order dismissing his petition without enquiry an appeal lies to this Court.

We set aside the District Judge''s order dismissing the appellant''s petition and we direct him to keep it pending until the enquiry is complete and

till final orders have been passed as to the action to be taken by the Court u/s 43.

The appellant''s costs in this appeal and in the lower Court will be borne by the Respondent.