In Re: Mota Singh (No Case No.) [1934] EACA 20 (1 January 1934)

BANKRUPTCY JURISDICTION.

Before HORNE, J.

In the Matter of MOTA SINGH.

Bankruptcy-Bankruptcy Notice-Irregularity-Inclusion of costs incurred subsequent to Judgment—Amendment—Bankruptcy • Ordinance 1930, sections $3(1)(g)$ , 4 and 129 (1).

Held (23-3-34). - That the addition of a sum expended on an unsuccessful attempt to levy execution on the debtor's goods to the<br>amount of the judgment debt was a mistake rendering the bankruptcy notice invalid and that the mistake was not a formal defect or irregularity which could be remedied by amendment under section $129$ (1).

Modera for the Debtor.

Trivedi for the Creditor.

A bankruptcy notice was issued on the 27th January, 1934, calling upon the debtor to pay the sum of Sh. 1,220/66 with interest at 6 per cent per annum on the decretal amount due on a final judgment drawn up on 22nd January, 1934. The decretal amount was Sh. 1,164/66. The debtor gave notice that he disputed the validity of the notice on the ground that the sum specified in the notice exceeded the amount actually due. The creditor thereupon supplied particulars showing that he had added to the decretal amount of Sh. 1.164/66 a sum of Sh. 56/00, the costs incurred in an unsuccessful attempt to levy the sum of Sh. $1,164/66$ on the debtor's goods.

Modera.—The notice is bad and the error is such as cannot be amended. He referred to: In re O. C. S. (A Debtor) (1904) 2 K. B. D. 161; In re A Debtor (1908) 2 K. B. D. 684 at 688; In re Beach, 5 Dec.

1905.

Trivedi.—The expression "final judgment" and "the amount of the judgment debt'' in section 3 (1) (g) includes costs incurred in executing the judgment as they were accessory to the judgment debt. He referred to Re Lehmann (1890) 62 L. T. R. 941 and In re Low (1891) 1 Q. B. D.

147.

JUDGMENT.—The point taken on behalf of the debtor is that the bankruptcy notice is bad as it demands the payment of a sum in excess of the judgment debt as set out in the final decree. Under section 3 (1) (g) a creditor who has obtained a final judgment may serve a bankruptcy notice. If the debtor does not comply therewith he commits an act of bankruptcy and a petition may then be presented against him if his total indebtedness amounts to Sh. 1,000 and he may be made bankrupt. The result from such a notice is a serious one, affecting not only the personal status of the debtor but the interests of other persons.

Section 4 is in strict terms: the notice shall require the debtor to pay the judgment debt or sum ordered to be paid. in accordance with the terms of the judgment or order. It is further provided by this section that the notice shall not be invalidated by reason only that the amount specified exceeds the amount due unless the debtor gives notice that he disputes the validity of the notice on the ground of such misstatement. In. this case due notice was given and it is admitted that the creditor claims a sum for costs incurred in abortive execution proceedings in addition to the amount in the final decree and has included these costs in the amount specified in the notice. The additional amount is small, viz. Sh. 56, and it is submitted that even if the inclusion of this amount is not permissible it is aformal defect or irregularity which may be amended under section $129$ (1).

The cases quoted in argument and especially Re Beach (unreported) referred to in Re A Debtor (1908) 2 K. B. 688, show that the Courts do not treat as a formal defect a demand for a sum in excess of the judgment and have consistently refused. amendment.

The principle of these decisions is one which I feel compelled: to adopt. To make a man a bankrupt is a very serious matter. The power to do so is given by the Ordinance and because of the penal consequences, the procedure there laid down must be strictly followed. Accordingly I hold this notice to be invalid and incapable of amendment.

The notice will be set aside with costs.