Karnati Sriramulu Vs. J.A. Qureshi and ors. - Court Judgment

Excerpt:
civil - disputed debt - section 49 of provincial insolvency act, 1920 - debt disputed or undisputed has to be proved following procedure prescribed under the act - section 49 of act does not have any application when debt is disputed one - disputed debt has to be proved. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - since respondents 2 to 11 in the insolvency petition failed to disclose the particulars of their respective claims, their claims were rejected by the receiver. where the debt is disputed, it will have to be proved like any other debt by producing the account-books.1. the 43rd respondent in i.p. no. 1 of 1969 on the file of the district judge, khammam, has preferred this appeal against the order dated 21 -9-1978 passed by the district judge, khammam directing the receiver to distribute the amount of rs. 17,339/- to creditors nos. 2, 3, 6, 7, 9, 11 to 14, 18 to 21, 24, 25, 41 and 43 in proportion to the debts proved by them. 2. the case of the appellant is that having allowed the insolvency petition, the court appointed a receiver to take possession of the property of the insolvent and heard the objections of the creditors. since respondents 2 to 11 in the insolvency petition failed to disclose the particulars of their respective claims, their claims were rejected by the receiver. respondents 27 and 29 based their claims on pronotes. the receiver rejected the claim of the 27th respondent on the ground that he did not produce -the pro-note. however, the receiver look up the claim of the 29th respondent and directed that the claim may be decided by the district court. the learned district judge, however, rejected the claim of respondents 27 and 29 in the insolvency petition, but allowed the claim of respondents 2 to 11 in the insolvency petition whose claim was rejected by the receiver on the ground that they have not disclosed any particulars of their respective claims. but the learned district judge allowed their claims on the ground that the other creditors did not cross-examine respondents 2 to 11 when they had given their statements. therefore, he thought their statements to be sufficient proof of their debts, 3. in this appeal, mrs. chamunthi, the learned advocate appear lag on behalf of the appellant 43rd respondent in i.p. no. 1 of 1969 contends that having regard to the provisions of section 49(1) of the provincial insolvency act, a debt could be proved by delivering or sending by post in a registered letter to the court an affidavit verifying the debt and sub-section (2) thereof provides that the affidavit shall contain or refer to a statement of account showing the particulars of the debt and shall specify the vouchers, if any, by which the same can be substantiated and the court may at any time call for the production of the vouchers. mrs. chamanthi contends that in the instant case, it is to be noted that there is a dispute with regard to the debt and therefore section 49 of the act will have no application where the debt is disputed. it is only where the debt is not disputed that then section 49 would be attracted. where the debt is disputed, it will have to be proved like any other debt by producing the account-books. in support of this contention mrs. chamanthi relied on the decision in abdul shakur v. kotwaleshwara prasad, : air1958all54 . to my mind, the contention advanced by the learned advocate has to be acceded to. it is to be noted that section 49(1) of the act, as pointed out, in the allahabad case, may be a mode of proof of undisputed debts. but, to my mind, even in the case of undisputed debts under section 49(2) of the act the affidavit so produced under sub-section (1) of section 49 should contain or refer to a statement of account showing the particulars of the debt and should substantiate the vouchers, if any by which the same can be substantiated. therefore, even in a case where the debt is not disputed the creditor will have to specify the vouchers by which be can substantiate the debt. in the instant case, no such details have been given. to my mind, when the appellant is contesting the debt of respondents 2 to 11 in the i.p., they ought to have proved in proper manner. mrs chamanthi states that except filing of their claims, there is no evidence whatsoever on behalf of respondents 2 to 11 calling them for being cross-examined by !he appellant. i am of the opinion that this appeal has to be allowed which is hereby allowed and the case remitted back to the court of the district judge, khammam with a direction that respondents 2 to 11 may be called upon to prove then- debt by proper method as a disputed debt has to be proved and given anopportunity to the appellant herein to disprove those debts of respondents 2 to 11. since in spite of service of notice, no one has appeared, i do not see any reason to grant costs. appeal is allowed and the case remanded.