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Insolvency Petition No. 8 of 1970, decided on 26th Novem ber 1971.

S. 12(1)lc)‑Insolvency petition a ainst firm‑Two partners of debtor firm sought to be impleaded in proceeding after more than a year of filing petition‑Held, petition with regard to acts committed beyond period of 3 months by persons sought to be Impleaded was incompetent.

A I R 1935 Mad. 857 ; A I R 1939 Cal. 31a and (1895) 1 Q B 194 ref.

A. K. Lakhani for Plaintiff's.

G. Raymond and Talmiz Burney for Respondents.

Date of hearing : 15th November 1971.

This is an application under Order I, rule 10 read with sec tion 151, C. P. C. for joining Abdul Rauf and Mst. Bilquis Suraiya as respondents.

Messrs H. A. Sattar A. Shakoor & Company is a partnership, firm doing business at Karachi. Respondents 2 to 9 as well as. the two persons Abdul Rauf and Mst. Bilquis are said to be the partners of the firm. The petitioners are the creditors firm and filed a petition under section 12 of the Insolvency (Karachi. Division and Dacca) Act (11I of 1909) (sic) on 1st April 1970. Subsequently it was discovered that Abdul Rauf and Mst. Bilquis were also partners of the firm and, therefore, the application was made on 26th May 1971, to join them as respondents.

The application was resisted by Abdul Rauf and Mst. Bilquis on the ground that the proceedings could not be instituted against them for any act of insolvency committed beyond the period of three months as laid down by section 12 (1)(c) of the Act. This section lays down that the creditor shall not be entitled to present insolvency petition against the debtor unless an act of insolvency on which the petition is grounded has occurred within 3 months before the pesentation of the petition. The present application has been made more than one year after the insolveny petition was presented. The condition laid down by the section is a condition precedent to the filing of the petition and, therefore, A' the petition with regard to the acts committed beyond the period of 3 months by the persons who are sought to be impleaded is incompetent. In this connection the learned counsel referred to three cases reported in A I R 1935 Mad. 857, A I R 1939 Cal. 31a and (1895) 1 Q B 194 which fully supports the contention apart from the fact that the section itself is very clear and admit of no ambiguity.

In order to meet this it was urged by the learned counsel for the petitioners that the firm of which the two persons were partners already impleaded and, therefore, the application was not:. hit by section 12(1)(c). I am unable to accept this contention. Although the partnership was impleaded but the adjudication would be confined to the partnership alone and the persons who are not impleaded cannot be declared insolvent. So tha position would certainly change and, therefore, the provisions of section 12(1)(c) cannot be ignored.

The application is, therefore, dismissed.

K. B. A.

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