P L D 1971 Karachi 465 (PLP)

GHULAM RASUL K. SHAIKH, J.

This L. P. appeal arises out of the insolvency petition. The impugned order is dated 11‑11‑68 passed by the learned Single Judge. A firm known as Aziz Carpets having its partners Sarwardin and Abdul Rashid Khan incurred large debts. There were in all 17 creditors including banks. The firm owed Rs. 18,126.57, Rs. 9,109 and Rs. 16,000 to the Standard Bank, Industrial De velopment Bank and National Bank respondent respectively. Since the debts could not be discharged an insolvency petition was filed on 19th April 1967 and the adjudication was made on 27th April 1967. On 20th February 1967 a sum of Rs. 400 was deposited by the firm in the National Bank of Pakistan. The Official Assignee having taken possession and control of the firm made, an application under sections 7 and 56 of the Insolvency (Karachi Division and Dacca) Act for a direction to the bank to pay the amount to him on the ground that the amount paid to the National Bank amounted to a preference shown by the insolvent over other creditors. The matter came up before the learned Single Judge who agreed with the conten tion raised by the Official Assignee and ordered the bank to return the amount to the Official Assignee. It is against this order that the present L. P. A. was filed. A preliminary objection was taken that the appeal was time barred and this question was left open while admitting the appeal. In order to determine the question of limitation it is necessary to state the‑ relevant ‑facts. The impugned order was passed on 11‑11‑

68. The application for the copy of the order was made on 12‑11‑68 and it was delivered on 9‑12‑

68. The period of limitation to file L. P. A. is 20 days and, therefore, the appeal had to be filed on 20‑12‑68 but the Court was closed on account of the winter holidays and it reopened on 2‑1‑69, and, therefore, the appeal could be filed on that day but instead it was filed on 8‑1‑

69. In order to meet this, the learned counsel for the appellant contended before us that although according to the Notification No. 109/A/17‑3 dated Lahore, 14th October 1967, prescribing the annual list of general holidays to be observed by the civil Courts and the High Court of West Pakistan, during the year 1968, the High Court was closed for winter holidays from 24th December 1968 to 1‑1‑69 but the Judges of the High Court could observe the holidays up to 8th January 1969, and, therefore; it could not be said that the High Court was opened on 2‑1‑69 and so it must be deemed to have been closed up to 8th January 1969, and, therefore, the appeal could be filed on 9‑1‑69 when the Judges resumed their duties after the holidays. We find no force in this contention. The notification is very clear and admit of no ambiguity. The presentation of appeal did not require the presence of a Judge or his functioning in the Court. According to rule 1, Chapter 1 of the Rules and Orders of the High Court. Judicature at Lahore, Volume 1 which was A applicable, all appeals could be deposited in the petition box of the Court outside the room of the ueputy Registrar, and the appeal would be filed on 2‑1‑69 when the High Court reopened after the winter Holidays. It was not necessary that the judges must be present or they must be attending the judicial work. It is the practice prevailing in the High Court which is material for the purpose of filing appeals. The learned counsel proceeded to draw distinction between the Court and the office of the Court but this distinction is irrelevant. The High Court was open on 2nd January 1969, for all purposes except the Judges were observing holidays and no judicial work was being done by them. Even on Saturdays no work is done in Court yet it cannot be said that the High Court is closed. In this view we are supported by the authority in the case of Thokkudubibyanu Immaniyelu and others (A I R 1948 Mad. 521). In that case the limitation expired during recess of the High Court which reopened on Saturday but on that day although the office of the High Court was open, there was no actual sitting, no judicial work was carried out and no Judge sat to adjudicate. The review petition was presented on Monday when the Judges sat to discharge judicial work. It was held that the petition ought to have been presented on Saturday and it was time‑barred. Same view was taken in the case of Dwarka Prashad and another v. Union of India (A I R 1954 Pat. 384). Three more authorities which were sought in aid by the learned counsel for the respondent are reported in A I R 1924 Bom. 144, A I R 1927 Bom. 480 and A I R 1941 Nag. 216, which laid down that the question whether the Court was open or closed was a question of fact depending upon the practice of the Court and the Rules regulating the business of the Court. In this connection it may also be noted that in case it was thought that the Court was closed up to 8th January 1969, and the appeal could be presented on 9th January 1969, why the present appeal was filed on 8th January 1969. No explanation is forthcoming. This appeal is clearly time‑barred and no application for the condonation of delay has been made. So far the second point is concerned it was urged by the learned counsel for the appellant that the amount was deposited in the ordinary course without any intention to give preference. It was further urged that the burden of proof of giving preference lay on the Official Assignee and the onus was not discharged. To support this contention reliance was placed upon four authorities of the Privy Council reported in A I R 1928 P C 77, AIR 1930 P C 265, A I R 1931 P C75 and A I R 1934 P C

3. This depends upon the interpretation of section 56 of the Insolvency Act and it reads as under :‑ "56(1). Every transfer of property, every payment made, every obligation incurred, and every judicial proceeding taken or suffered by any person unable to pay his debt as they became due from his own money in favour of any creditor, with a view of giving that creditor, a preference over the other creditors, shall, if such person is adjudged insolvent on a petition presented within three months after the date thereof, be deemed fraudulent and void as against the official assignee. (2) This section shall not affect the rights of any person making title in good faith and for valuable consideration through or under a creditor of the insolvent." The bare reading of the section makes it clear that it is not in every case of payment to one of the creditors that the preference has to be presumed but it all depends upon the circumstances of the case. The expression "with a view of giving that creditor a preference over the other creditors" is important and was not incorporated without purposes. This clearly envisages an intention on the part of the debtor to give preference. It must B be a conscious act. The contrary makes the expression redun dant and purpose meaningless. To establish the intention the onus of proof lies on the official assignee. Till the onus is discharged, it is not incumbent upon the insolvent to establish the absence of intention. In this case no attempt was made by the Official Assignee to lead any evidence to establish that inten tion. Looking to the meagre amount which was deposited in the bank no inference from this mere deposit can be drawn indicating necessary intention nor there is anything suspicious, but it seems that the payment was made in the ordinary course. This case is covered by section 57 (b) and, therefore, no exception can be taken to the payment made to the appellant bank. In view of our finding that the appeal is time‑barred, it is dismissed with costs. A. E. Appeal dismissed.