1. Notification 35-B-XIX dated the 19th April 1920 fixes the remuneration of the Receiver, East Berar, Amraoti, at 5 per cent on the assets realised and available for distribution. Where any part of the insolvent's property is subject to a mortgage the value of the insolvent's right to redeem that property can only be his assets available for distribution. If the Receiver sells the property free from the mortgage and realises the purchase money, the whole of it is not assets available for distribution but only such part as remains in his hand after paying off the mortgagee. He is not entitled to a percentage on the whole of the purchase money. This view is in consonance with the Judicial Commissioner's Civil Circular 11-16, page 36. See also Shridhar Narayan v. Atmaram Govinda (1883) 7 Bom 455. The present case in which the first Court's order was passed on the 15th March 1921 is governed by the above notification. By notification 136-XVIII the following was inserted at the end of notification 36-B-XIX: “The said percentage shall be calculated as under:—
(a) on the principal sum forming the proceeds of each estate distributable as dividends;
(b) on the proceeds of sale, when on the application of a creditor who holds security over any part of the insolvent's property the Official Receiver sells the property and realises the security under an order of the Court;
(c) when the insolvent compromises or settles with his creditors on the total sum agreed to be paid by them.”
2. It is contended by the learned pleader for the Official Receiver that under clause (b) the Receiver is entitled to 5 per cent on the full purchase money.
3. The clause refers to a sale on the application of the creditor who holds security. In the present case the creditor not only did not apply for the sale but opposed it. It is however urged that the words “on the application of a creditor etc.” are redundant. I see no reason to hold that they are so. It is not likely that redundant words would be used in matter which is added for the purpose of explanation.
4. The property was sold for Rs. 40,000 out of which Rs. 36,141-13-6 were paid in satisfaction of the mortgage decree. The Official Receiver is therefore entitled to commission on the balance Rs. 3,858-2-6 only at 5 per cent. As regards the cross objection it seems to me that the Receiver is entitled on the principle of clause (c) to a commission on the sum paid to the creditor but in my opinion he cannot claim commission on both this sum as well as the Rs. 3,858-2-6 stated above. He will therefore be allowed commission on the larger of the two sums only. I make no order as to costs in this Court.