TMI Blog1933 (10) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... he Official Assignee of Madras to act as auxiliary to the Official Assignee of Penang and take possession and realise the properties of the bankrupt. The Official Assignee of Madras having heard of the proceedings in execution taken by the appellant applied to the Insolvency Court for an order under Section 18 of she Presidency Towns Insolvency Act staging the appellant's execution proceedings. On May 1, 1933, the learned trial Judge ordered a stay of those proceedings. Hence this appeal. 3. Stone, J., considered first of all whether the insolvent's property in India vested or should be deemed to have vested in the Official Assignee of Penang subject to the performance of any act of transfer required by the law of India as from the date of adjudication. If yes, then the attachment would be ineffective because it came into force after the date of the adjudication. It was argued in the Insolvency Court and here that the effect of the adjudication in Penang was to vest in the Official Assignee there the immovable property of the insolvent in British India and in this connection the Bankruptcy Ordinance in the Straits Settlements vesting an insolvent's property in the Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt within the Empire to aid other jurisdictions as effectively as possible, this Court will deem, pursuant to the rules of private International Law, there to have been a vesting, in other words, this Court will deem the insolvent's immovable property here to have vested in the Official Assignee of Penang on the date of the adjudication just as other immovable property of the insolvent in the Straits Settlements would have done. If this Court in entitled to deem such a vesting, then clearly the appellant's attachment of the insolvent's immovable property was after the date of the vesting and is ineffective. In my view, however, it is not necessary for the Court to fall back upon any fiction as to the date of vesting. There is no direct authority upon the point. Gilbraith v. Grimshaw (1910) A C 508 : 79 L J K B 1011 : 103 L T 294 : 17 Manson 183 : (sic)51 S J 634 and Anantapadmanabhaswami v. Official Receiver of Secundrabad 142 Ind. Cas 552 : 56 M 40(sic); Ind. Rul. (1933) P C 95 : 37 L W 576 : (1933) M W N 374 : 37 C W N 553 : 64 M L J 562 : A I R 1933 P C 134 35 Bom. L R 747 : 57 C L J 418 (P C) are different from the present case in a very important respect. In the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant's execution having regard to the date of the adjudication and the fact that on that date the insolvent was free to assign this property though as I have already said it is not, in my opinion, question employing any fiction but one of the Court acting in aid recognising the foreign adjudication as effective from that date by a rule of international law. Dicey in his Conflict of Laws 4th Eon. at p. 478 says: While there is no provision in any Imperial Act giving Colonial Acts as to the vesting of immovables in the trustees of a bankrupt, extra territorial validity the requirement in the Bankruptcy Act, 1914, that Courts throughout the Empire should aid each other in effect enables a bankrupt's immovable property to be made available for his creditors in whatever part of the British Dominions it is situate subject of course to all charges on it valid by the lex situs. 7. This passage, it is true, does not say whether regard is to be had only to such charges on the property as exist at the date of the adjudication but Gilbraith's case (1910) A C 508 : 79 L J K B 1011 : 103 L T 294 : 17 Manson 183 : (sic)51 S J 634 and Anantapadmanabhaswami v. Official Receiver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apadmanabhaswami v. Official Receiver of Secunderabad 142 Ind. Cas. 552 : 56 M 40(sic); Ind. Rul. (1933) P C 95 : 37 L W 576 : (1933) M W N 374 : 37 C W N 553 : 64 M L J 562 : A I R 1933 P C 134 35 Bom. L R 747 : 57 C L J 418 (P C) the Privy Council decision in Anantapadmanabhaswami v. Official Receiver of Secunderabad 142 Ind. Cas. 552 : 56 M 40(sic); Ind. Rul. (1933) P C 95 : 37 L W 576 : (1933) M W N 374 : 37 C W N 553 : 64 M L J 562 : A I R 1933 P C 134 35 Bom. L R 747 : 57 C L J 418 (P C) in which, reversing the decision of two learned Judges of this High Court, as reported in Official Receiver of Secunderabad v. Gummidelli 132 Ind. Cas. 297 : 54 M 727 : 33 L W 562 : (1931). M W N 444 : A I R1931Mad.474 : Ind. Rul. (1931), Mad. 649 : 61 M L J 774 to the contrary, it was held that a transfer effected under a foreign adjudication order was a private order in that it operated in British India not vi statuti but only under the rule of private international law. That the transfer so operated in the present case has indeed been held by Stone, J., in the case now under notice and there can be no doubt but that such is the fact. 11. The insolvent was adjudicated to the Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res of the Colony's legislative jurisdiction on the principle of Extra territorium jus dicenti impune non paretur. There is a clear authority for this is Macleod v. Attorney-General of New South Wales (1891) A C 455. That was a case in which a man was convicted of bigamy at the Court of Quarter Sessions at Sydney, New South Wales, the bigamy having been committed in the United States of America. The Privy Council in reversing the conviction held that the words whosoever being married in the Colonial Statute could only be taken as meaning for the purposes of the Statute. whosoever being married and who is amenable, at the time of the offence committed to the jurisdiction of the Colony of New South Wales. 14. Similarly it was held that wheresoever should be read as 'wheresoever in this Colony the offence is committed.' To give to the words 'whosoever' and 'wheresoever' an extended extra Colonial application would be to allow to the Colony a legislative authority that it did not possess. It has also been held in Waite v. Bingley (1882) 21 Ch. D 674 : 51 L J Ch. 651 : 30 W R 698 that real estate in England does not vest in an assignee under an in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary steps had been taken. It is, however, important to observe that the liability, was held to have begun at the time of the adjudication and that the bankruptcy in the Colony was recognised In an English Court as being a bankruptcy even though no English Court of Bankruptcy had been called upon to act in aid in respect of it. 17. We have been referred to Gibbs v. Societe Industrielle des Metaux (1890, 25 Q B D 399 : 59 L J Q B 510 : 63 L T. 503 and Bartley v. Hodges (1861) 30 L J Q B 352 : 1 B S 375 : 8 Jur (N. S.) 152 : 4 L T 445 : 9 W R 693 the effect of which two decisions is that the discharge of a bankrupt adjudicated under a foreign law in the one case and under a Colonial Law in the other is no answer to an action against him as a party to a contract made and to be performed in England. These decisions, however, have no direct bearing on the point that is now before us. The strongest authority quoted for the appellant is to be found in para. 80 of Mulla's Law of Insolvency (1930 Edition) in which he discusses Section 122 of the English Bankruptcy Act of 1914. That is the section, under which ail British Courts acting in insolvency are bound to give effect to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in England as if it were an English bankruptcy of the same date. It only says that the Courts of the different parts of the United Kingdom shall severally act in aid of and be auxiliary to each other in all matters of bankruptcy. 20. But these remarks by no means conclude the matter. They were made with particular reference to an attachment that had taken place before the adjudication. Loreburn, Lord Chancellor, in his judgment in the same case has remarked: If the attachment is prior in date, then I do not think it will be affected by the title of the trustee in a foreign bankruptcy.... I think in each case the question will be whether the bankrupt could have assigned to the trustee, at the date when the trustee's title accrued, the debts or assets in question situated in England. If any part of that which the bankrupt could have then assigned, is situated in England, then the trustee may have it but lie could not have it unless the bankrupt could himself have assigned it. 21. And to supplement his we have in the further judgment of Lord Dunedin: Now so far as the general principal is concerned, it is quite consistent with the comity of nations that it should be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act of sale. It has been held in Savithri Ammal v. Ramasami 8 M L J 266 and Rebala Venkata Reddi v. Mangadu Yellappa, Chetty 38 Ind. Cas. 107 : 5 L W 234 that a mere contract of sale though it does not confer an interest in the subject-matter of the contract still creates an obligation (annexed to the ownership of the property within the meaning of Section 40 Transfer of Property Act) that it should be conveyed to the promissee under the contract so that a creditor who attaches the property subject to that obligation is prima facie entitled to sell the property subject to only to that obligation. But the analogy does not hold as an adjudication does not create an obligation annexed to the ownership of the property which obligation can be enforced by an action taken on that behalf. 25. On the contrary if the insolvent fails in his duty of making over his property to the Official Assignee or Official Receiver or similar official, however named, the only remedy is to proceed against him for contempt. There are provisions as to this, in language that is almost identical in each case, alike in Section 22 of the English Bankruptcy Act, Section 33 of the Presidency Towns Insolvency Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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