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Official Assignee Calcutta, In Re

Calcutta High Court

Jul 8, 1938

Judgment

Subsequent
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Factual and Procedural Background

One Umar Shanker Chatterjee was adjudicated an insolvent by the Court under the Presidency Towns Insolvency Act, 1909 on 13 February 1934. The insolvent was publicly examined under Section 27 of the Insolvency Act, with his examination concluding on 17 February 1938. The Official Assignee of Calcutta sought a certified copy of the notes of that examination to assist in steps to set aside a deed of settlement executed by the insolvent on 5 July 1932. The Registrar in insolvency refused to furnish the copy except upon payment of a fee of As. 5 per folio as prescribed by Rule 204 of the Insolvency Rules made under Section 112 of the Act. The Official Assignee contended that he was entitled to obtain the copy without charge under Section 115 of the Insolvency Act.

The Taxing Officer referred the matter to the Judge specially appointed under Section 5 of the Court-fees Act, 1870. The Advocate-General, instructed by the Solicitor for the Province of Bengal, objected that the reference was incompetent unless it concerned a fee payable by virtue of the High Courts Act (Section 15) or the Government of India Act (Section 107). The Judge examined the publication of the Insolvency Rules (Notification No. 44 dated 16 January 1910) which showed the Rules were published as made under Section 112 of the Insolvency Act.

Legal Issues Presented

Whether the Taxing Officer's reference under Section 5 of the Court-fees Act was competent in respect of the fee demanded for certified copies of insolvency examination notes.
Whether the fee prescribed by Rule 204 of the Insolvency Rules is a fee "payable by virtue" of the powers conferred by Section 15 of the High Courts Act (or, for corresponding purposes, Section 107 of the Government of India Act, 1915) and therefore covered by Section 3 of the Court-fees Act.
Whether the Official Assignee is entitled to obtain certified copies of the insolvent's examination notes without payment under Section 115 of the Insolvency Act.

Arguments of the Parties

Official Assignee's Arguments

The Official Assignee maintained he was entitled to obtain a copy of the insolvent's examination notes without payment under Section 115 of the Insolvency Act.

Registrar / Registrar in Insolvency

The Registrar refused to furnish the certified copy except on payment of a fee of As. 5 per folio as prescribed by Rule 204 of the Insolvency Rules made under Section 112 of the Act.

Advocate-General (on behalf of the Province)

Objected to the competency of the reference under Section 5 of the Court-fees Act, arguing Section 5 applies only to fees payable under Chapter 2 and that it must be shown that the fee in question is payable by virtue of Section 15 of the High Courts Act or Section 107 of the Government of India Act (i.e., fees falling within the scope of those provisions).
Noted that the Insolvency Rules were published as made under Section 112 of the Insolvency Act, suggesting prima facie they were not made under the High Courts Act powers.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
13 Rang 156	Addressed whether the High Court could prescribe fees in respect of appeals from the Original Side; Leach J. accepted that although Section 107 referred to subordinate Courts, the High Court's letters patent power to regulate proceedings included power to impose fees for appeals from the Original Side; noted that a mistaken reference to Section 107 did not invalidate the operative parts of the notification.	The Court reviewed Leach J.'s reasoning and observed that the case proceeded on an assumption about Section 5 of the Court-fees Act that this Court did not accept wholesale; nonetheless the reasoning about the High Court's substantive power informed the Court's approach to whether fees could properly be considered payable under High Courts Act powers.
45 Mad 849	Trotter J.'s view that in making rules for imposition and collection of court-fees the High Court was acting under the general rule-making power conferred by Section 15 of the High Courts Act rather than being limited to fees allowed to officers.	The Court considered this contrasting authority and discussed grammatical and statutory-construction reasons, ultimately disagreeing with a restrictive reading that would exclude the High Court from the conception of "such Courts"; this analysis supported the Court's conclusion that Rule 204 could have been made under Section 15.
43 Mad 747	Held that an attorney acting for the Official Assignee was entitled to obtain without payment a copy of an order against which the Official Assignee desired to appeal, on the ground that issuing the copy was issuing the order under Section 115(2).	The Court regarded this authority as of little or no direct bearing on the present question (a distinction was drawn between obtaining a copy of an order and obtaining copies of proceedings/notes under Section 115).
(1894) 2 QB 135	Authority for the proposition that a copy of the note of an insolvent's examination under Section 27 is a copy of proceedings before the Court.	The Court accepted that a copy of the notes is a copy of proceedings, but still held that Section 115 does not necessarily entitle the Official Assignee to free certified copies in the circumstances of this case.

Court's Reasoning and Analysis

The Court proceeded in two main strands of analysis: (1) whether the Taxing Officer's reference could properly be entertained under the Court-fees Act, and whether Rule 204 of the Insolvency Rules was a fee covered by Section 3 of that Act; and (2) whether Section 115 of the Insolvency Act entitled the Official Assignee to obtain certified copies of the insolvent's examination notes without payment.

On the jurisdictional/Statutory-power point, the Judge observed that the Insolvency Rules were published as made under Section 112 of the Insolvency Act (Notification No. 44 of 16 January 1910), so prima facie the Rules were not made under the High Courts Act (Section 15). The Advocate-General argued that Section 5 of the Court-fees Act could not be used unless the fee was one payable by virtue of the High Courts Act or Section 107 of the Government of India Act. The Court accepted the need to show that the subject-matter of the reference is a fee covered by Section 3, but favored a reasonably wide construction of Section 3: if a particular fee could have been imposed under the High Courts Act or the Government of India Act, it should be treated as payable by virtue of that Act within the meaning of Section 3 even if the High Court purported to impose it under some other power.

The Court then examined the scope of Section 15 (analogous to Section 107 of the Government of India Act) and considered conflicting judicial views. Leach J. had confined Section 107 to subordinate courts but found an alternative basis in the letters patent powers to regulate proceedings including imposing fees. Trotter J. (45 Mad 849) had held that the High Court's power to make rules (Section 15) supported imposition of fees. The Judge undertook a statutory construction of the phrases "such Courts" and "all clerks and officers of Courts" and concluded that:

When Section 15/Section 107 uses "such Courts" it likely refers to those courts subject to the High Court's appellate jurisdiction; however, the clause referring to "all clerks and officers of Courts" naturally encompasses the High Court itself.
The grammatical and contextual reading does not confine "fees allowed" to historical perquisites; the broader meaning supports the view that the High Court could validly make rules prescribing fees under the power to make general rules.

On that basis the Court concluded that Rule 204 of the Insolvency Rules could have been made by the High Court under the powers conferred by Section 15 of the High Courts Act and therefore the fees prescribed by that Rule are covered by Section 3 of the Court-fees Act. This supports the competence of the reference under Section 5 once it is shown the fee is of the relevant kind.

Turning to Section 115 of the Insolvency Act, the Court accepted the Official Assignee's contention that a copy of the insolvent's examination notes is a copy of proceedings (citing (1894) 2 QB 135). Nonetheless, the Court interpreted Section 115 narrowly. Its purpose was read as preserving as much of the insolvent's estate as possible for distribution to creditors; the judge rejected the broader contention that Section 115 entitles the Official Assignee (and by extension all persons) to unlimited free copies of insolvency proceedings for any purpose.

The Court set out a pragmatic test: "by copy is meant a copy necessary under the provisions of some law or rule having the force of law for some step in the administration of the insolvent's estate." The facts did not satisfy this test. It was not clear that the Official Assignee would in fact use the notes for his application; and even if the notes disclosed admissions helpful to setting aside the deed, production of a certified copy was not the only means of proof (affidavit evidence or notes of an inspector could suffice). Consequently, the Official Assignee was not entitled to the copies free of charge and must pay the prescribed fee.

Holding and Implications

Holding:

The Official Assignee is only entitled to obtain the certified copies of the insolvent's examination notes upon payment of the fee prescribed by Rule 204 of the Insolvency Rules.

Additional determinations forming part of the holding:

The Court concluded that Rule 204 of the Insolvency Rules could have been made under Section 15 of the High Courts Act; accordingly the fees prescribed thereby are covered by Section 3 of the Court-fees Act (and thus susceptible of review under the proper statutory process).
Section 115 of the Insolvency Act does not broadly entitle the Official Assignee to unlimited free copies of insolvency proceedings; the entitlement is limited to copies necessary for some statutory or rule-based step in administration of the insolvent's estate.

Practical consequences and costs:

Direct effect on the parties: the Official Assignee must pay As. 5 per folio (the prescribed fee) to obtain the certified copies he sought.
Costs: No general order as to costs was made against the Official Assignee; however, the Official Assignee may have his costs out of the insolvent's estate.

This summary is compiled exclusively from the provided opinion. If the opinion did not address broader constitutional or precedent-setting implications expressly, none have been asserted here beyond the direct effects on the parties as described in the judgment.

Show all summary ...

1. This matter has been referred to me by the Taxing Officer as the Judge specially appointed in that behalf by the Chief Justice under Section 5 of the Court fees Act, 1870. The circumstances are as follows: One Umar Shanker Chatterjee was adjudicated an insolvent by this Court under the Presidency Towns Insolvency Act, 1909 on 13th February 1934. The insolvent was thereafter publicly examined under Section 27 of the Insolvency Act, his examination being concluded on 17th February 1938. The Official Assignee of Calcutta desires to have a certified copy of the notes of the insolvent's examination for the purpose of taking steps to have a deed of settlement executed by the insolvent on 5th July 1932 set aside. The Registrar in insolvency refuses to furnish the copy except on payment by the Official Assignee of a fee of As. 5 per folio as prescribed by R. 204 of the Rules made under S. 112 of the Act. The Official Assignee maintains that he is entitled to obtain a copy without charge under S. 115 of the Act.

2. The learned Advocate-General appears instructed by the Solicitor for the Province of Bengal and takes the objection that the reference by the Taxing Officer is incompetent. He points out that under Section 5 of the Court-fees Act, a reference is only permissible in cases of fees payable under Ch. 2. Accordingly with regard to this particular fee it must be shown that it is a fee payable by virtue of the power conferred by Section 15 of the High Courts Act, 1861, or Section 107 of the Government of India Act, 1915. I have examined the Gazette of India, and I find the Insolvency Rules were published therein under Notification No. 44 dated 16th January 1910.

3. The notification shows that the High Court purported to make the Rules under Section 112 of the Insolvency Act. Prima facie therefore the Rules were not made by virtue of the powers conferred by Section 15 of the High Courts Act.

4. Reference has been made to 13 Rang 156.1 The facts were as follows: The High Court purporting to act under Section 107 of the Government of India Act, 1915, had prescribed the fees payable in respect inter alia of appeals under Cl. 13 of the Rangoon Letters Patent, which corresponds to Cl. 15 of the Letters Patent of this Court. An unsuccessful litigant desired to appeal against a decree passed by the High Court in the exercise of its ordinary original civil jurisdiction, and objected to pay the fee on the memorandum in accordance with the scale prescribed on the ground that S. 107 gave the Court the power to prescribe fees with regard to proceedings on the Original Side or to appeals from judgments of the Original Side. S. 107 is as follows:

Each of the High Courts has superintendence over all Courts for the time being subject to its appellate jurisdiction, and may do any of the following things, that is to say:

(a) call for returns;

(b) direct the transfer of any suit or appeal from any such Court to any other Court of equal or superior jurisdiction;

(d) prescribe forms in which books, entries and accounts shall be kept by the officers of any such Courts; and,

(e) settle tables of fees to be allowed to the sheriff, attorneys, and all clerks and officers of Courts:

Provided that such rules, forms and tables shall not be inconsistent with the provisions of any Act for the time being in force, and shall require the previous approval, in the case of the High Court at Calcutta of the Governor-General in Council, and in other cases of the Local Government.

5. Leach J. accepted the contention that Sec. 107 only refers to Courts which are subordinate to the High Court, but he held that the power to make rules and orders for the purpose of regulating all proceedings in civil cases conferred by Cl. 35 of the Rangoon Letters Patent, corresponding to Cl. 37 of our Letters Patent, included the power to impose and collect fees in connexion with the reception of appeals from the Original Side. He further held that the fact that the notification purported to be made pursuant to the provisions of Sec. 107(e) made no difference as to its legality.

6. After referring to various authorities he said at page 165:

The Court in issuing the notification referred to undoubtedly intended to exercise the powers vested in it. The reference to Section 107 of the Government of India Act, may be unfortunate, but for the reasons indicated I do not consider that it invalidates the operative parts of the notification.

7. The question as to the applicability of Section 5 of the Court-fees Act, does not appear to have been raised and the discussion proceeded on the assumption that the Section could be utilized to test the legality of any court-fee prescribed by the High Court. I do not think that assumption is correct, and I agree with the Advocate-General that before S. 5 can be applied, it ??? be shown that the subject-matter of the reference is a fee covered by Sec. 3. On the other hand, I think, it is right to give a reasonably wide construction to S. 3 and I consider that if a particular fee could have been imposed under the High Courts Act or the Government of India Act, it is payable by virtue of the power conferred by that Act within the meaning of the Section, even although the High Court purported to impose the fee under a power derived from some other source.

8. The question is therefore whether R. 120 of the Insolvency Rules could have been made under Section 15 of the High Courts Act, which for this purpose may be regarded as identical with Section 107 of the Government of India Act, 1915. Leach J., as has been seen, held that the Sections only apply to Courts under the superintendence of the High Court. In so holding he differed from Courts. Trotter J. who held in 45 Mad 849,2 (a case where the question of the applicability of Section 5 of the Court-fees Act, was specifically raised) that in making rules for imposition and collection of court-fees the High Court was acting under the general rule-making power conferred by S. 15. Courts-Trotter J. ptates that such fees are not “fees to be allowed to the sheriff, attorneys and all clerks and officers of Courts”, but considers that the table of fees derives its validity from the High Court's power to make and issue general rules for regulating the practice and proceedings of such Courts. I incline to the view that where the Section used the words “such Courts” it refers only to those Courts which are subject to the appellate jurisdiction of the High Court and over which the High Court has superintendence. On the other hand when the words “all clerks and officers of Courts” are used, all Courts in the Province are meant including the High Court. This is the more natural construction grammatically. Moreover, if the High Court is to be excluded, the mention of the sheriff and attorneys becomes unnecessary. I do not agree with Courts-Trotter J. that “fees allowed” refers exclusively to those fees which the clerks and officers could formerly claim as a perquisite. I see no reason why the phrase should be limited in this way. It cannot have that meaning in Section 107(e) of the Government of India Act 1915, as that statute was enacted long after the system of remuneration by fees had given place to remuneration by salaries. My conclusion therefore is that R. 204 of the Insolvency Rules could have been made by the High Court under the powers conferred on it by Section 15 of the High Courts Act, and the fees prescribed thereby are accordingly covered by Section 3 of the Court-fees Act.

9. With regard to Section 115 of the Insolvency Act, I have come to a conclusion adverse to the contention of the Official Assignee. The only Indian authority cited, 43 Mad 747,3 has little if any bearing on the matter. There it was held that an attorney acting for the Official Assignee was entitled to obtain without payment of any fee a copy of an order against which the Official Assignee desired to appeal. The reason for the decision was that the issuing of the copy was the issuing of the order under Sec. 115(2). To turn to sub-s. (i) I agree with the Official Assignee that a copy of the note of the insolvent's examination under S. 27 is a copy of proceedings before the Court: see (1894) 2 QB 135.4

10. No light is thrown on the matter by Section 148 of the English Bankruptcy Act of 1914, as fees prescribed by the bankruptcy statutes are expressly excluded from its operation. I do not however consider that Section 125 of the Insolvency Act, gives the Court power to prescribe a fee in respect of a matter covered by Sec. 115. The purpose of S. 115 is clearly to save as much as possible of the insolvent's estate for distribution amongst the creditors. It would however be in my opinion erroneous to give it the wide application for which the Official Assignee contends. If he is right, not only the Official Assignee but all other persons as well are entitled to obtain an unlimited number of copies of insolvency proceedings, it may be for purposes in no way connected with the insolvency concerned. This cannot in my opinion have been the intention of the Legislature. I think that by copy is meant a copy necessary under the provisions of some law or rule having the force of law for some step in the administration of the insolvent's estate. For example it may be necessary to prove the order of adjudication in a Civil Court by the production of a certified copy. This test is not satisfied in the present case. It is not even clear that the Official Assignee after he has perused the notes will use them for the purposes of his application. It is possible that the notes will convince him that it is not worth while proceeding further. However, even if it is assumed that in this particular case the notes will show that the insolvent has made admissions which will help the Official Assignee to set aside the deed, and that a certified copy of it is still true, that production of a copy is not the only possible method of proof. The admissions may be proved by the affidavit of a person who was present when they were made or by the production of notes taken by some one who has inspected the original record. I therefore decide that the Official Assignee is only entitled to these copies on payment of the prescribed fee. I think however that having regard to the vagueness of the language used in S. 115(i) his contentions were not unreasonable. Accordingly I make no order as to costs except that he may have his costs out of the insolvent's estate.

B.D/R.K

11. Order accordingly.