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Bombay High Court
Jamasji Shapurji Lala vs Sorabji Kawasji Bapasola on 4 March, 1908
Equivalent citations: (1908) 10 BOMLR 579
Author: Russell
Bench: Russell


JUDGMENT

Russell, J.

1. This is an application made on behalf of the insolvent that certain future commissions, which it appears are payable as premia in respect of Policies of Insurance which were effected through the instrumentality of the insolvent when he was in the employ of the Oriental Life Insurance Co., should be handed over to him. An application was made to Mr. Justice Beaman with regard to an accumulated sum of such commission which was in the hands of the Official Assignee and he held (and the Court of Appeal confirmed his decision) that the sum was an asset of the insolvent and therefore vested in the Official Assignee and that no order could be made.

2. As I have said the present application deals with future commissions as they accrue due.

3. I asked Mr. Manker under what section he applied and he could only refer me to Section 27 of the Insolvent Debtors Act. But it seems to me that section has no application to the present case. The material part of the section is as follows :-

If any such insolvent…shall be in any situation or employment whatsoever in respect of which he shall receive any salary or emolument…then it shall be lawful for the said Court to order the said insolvent to pay such proportion of his receipts there from to his assignee as the said Court shall think right and all saleable offices, appointments…shall vest…in the Official Assignee.

4. That, however, contemplates the insolvent being in any situation or employment in respect of which he shall receive any salary or income.

5. But the subject matter of this application cannot in my opinion be described as either salary or income.

6. As the opposing creditor said it seems to me as if the insolvent had held share in a company and the company declared dividends from time to time. There would be no question but that such dividends would be assets in the hands of the Official Assignee. Re O’Donoghue, which was cited to me, is plainly distinguishable, because there the question related to the personal earnings of the insolvent. The commissions herein are not personal earnings.

7. The case of In re Roberts (1900) 1 Q.B 122 supports my view for there it was held that the Billiard Balls in question which were supplied by a certain firm of Billiard Table makers to the insolvent or bankrupt were not wanted for his support, even if they could be regarded as personal earnings : as to which the Court of appeal said there was a queere.

8. For these reasons, therefore, in my opinion I must refuse this application.


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