TMI Blog1925 (6) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Higginbotham under instructions from his clients, the petitioners. After the filing of the application the necessary notices and advertisements were ordered on the 12th May 1925 and the matter was fixed for hearing on the 12th June 1925. It was also ordered that the petition should be advertised in the Rangoon Gazette, Rangoon Times, the Burma Gazette, the Rangoon Samachar and the Sun. The advertisements, though ordered on the 12th, were not issued till the 29th May 1925 and the advertisements actually first appeared on the 2nd June. The preliminary objections were taken before me in respect of this application. 2. The first objection relates to the form in which the notice of demand was issued. The objection turns on the wording of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclusively presumed to be unable to pay its debts. Once a notice is properly given and default is made it is not open to the debtor to show that, in spite of the non-payment of the debt he is in a position to pay his debts, as, for example, where, on account of a temporary embarrassment, he is unable to meet the particular liability, though he has ample assets in his hands. This, to my mind, is the whole effect of Section 163, Indian Companies Act. 3. Dealing with the objection raised, the argument, as I have stated before, is that the wording of the section requires that the demand must be made under the hand of the creditor. Mr. Higginbotham, when he issued the notice and made the demand, was undoubtedly acting as the agent of the cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re by a person who is authorized to sign another's name must be presumed to be the signature of the authorising person cannot be restricted unless the statute makes a personal signature indispensable. 4. In the case of the Whitley Partners Ltd. [1884] 32 Ch. D. 337, which was a case which turned on the construction to be placed upon the following words shall be signed by each subscriber in the presence of and attested by one witness at the least it was held that a signature by a person verbally authorized on behalf of one of the subscribers was a sufficient signature. In the case of Jackson Co. v. Napier 1887 35 Ch. D. 162, where an application for-registration under the Trade Mark Act, 1883 was made by an agent it was argued that as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess in Rangoon and conducting that business by an agent under a power-of-attorney, will have, for the purpose of Section 163 of the Act, to send a notice signed by himself all the way from London, It is a maxim in the construction of statutes that a statutory provision should be so construed as not to lead to inconvenience. There is a presumption that the legislature could not have intended anything inconvenient or unreasonable, but, at the same time, there is a distinction between the signature of an agent and the signature of an advocate. Where an agent signs on behalf of a principal he signs the principal's name as by his attorney. Thus, John Smith residing in England and carrying on business through his agent James Brown at Rangoon, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tress not on the word hand but on the words his hand and held that those words were restrictive and could not have meant to include the hand of the agent. If his reasoning is sound a similar reasoning would apply where the words used are signed by him as in the case of The Whitley Partners Ltd. [1884] 32 Ch. D. 337. But in this latter case the learned Lord Justices held that a signature by an agent is sufficient, The person verbally authorized actually signed the name of the subscriber, without even indicating that the signature was made by the agent and not by the principal himself. 10. It seems to me that the real test to apply is the one indicated in the case of The Whitley Partners Ltd. [1884] 32 Ch. D. 337, that is, to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of demand. He can send a notice under his own hand, as his client's advocate and nothing more. He cannot, unless specially authorized, sign his client's name, nor can a notice under his hand be considered as equivalent to or an efficacious substitute for a notice under the hand of his client. It is not open to Courts to speculate on the intention of the legislature except so far as that intention is expressed in the words of the enactment, but in this case it is reasonable to see what the object of the legislature could have been. It is suggested that in all probability that object was to enable the debtor to be quite sure of the authenticity of the notice, and to bind the creditor to the particulars on which he relies. If so, it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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