Walji v Jiwa and Co. (C.A. 20-1927.)
Observed later treatment
No later-treatment classification is recorded for this judgment.
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Holding
The Court of Appeal split on whether a receiving order against a named individual trading as a firm operates against a subsequently discovered partner. The majority held that a secret partnership cannot defeat a creditor's claim and that the receiving order operated against the undisclosed partner. The dissenting judge held that the receiving order was against an individual, not a firm, and that no partner can be made bankrupt without proof of a personal act of bankruptcy.
Outcome
Appeal dismissed; order adjudicating Jiwa Mulji bankrupt upheld by majority
Facts
A bankruptcy petition was presented against Kankubai Alladina Giga trading as A. E. Jiwa & Co. A receiving order was made on 12 July 1926 and an adjudication order on 31 August 1926. Following prolonged enquiries and public examination, the Official Receiver discovered that Jiwa Mulji, Kankubai's husband, was a partner in the firm and possibly the real owner of the business. Kankubai was illiterate, had no capital, and conducted all business through her husband under power of attorney. The trial judge found that Jiwa Mulji was the predominant partner and adjudicated him bankrupt in the same proceedings. Jiwa Mulji appealed, arguing the order was bad in law because there was no fresh act of bankruptcy and he had not been identified as a partner at the date of the receiving order.
Issues
- Whether a receiving order made against a person trading as a firm operates against a partner whose identity was not known at the date of the receiving order.
- Whether a partner subsequently discovered to have been a partner at the time of the receiving order can be adjudicated bankrupt in the same proceedings without proof of a fresh act of bankruptcy.
Orders
- Appeal dismissed with costs (majority decision).
- Bankruptcy proceedings against Mulji Jiwa set aside with costs in both Courts (dissenting opinion).
Rules and key headnotes
Legislation cited (5)
- Bankruptcy Act 1914 s.119
- Bankruptcy Act 1914 s.114
- Bankruptcy Rules r.285
- Bankruptcy Rules r.288
- Bankruptcy Act 1914 s.147
Cases cited (8)
- Lavella and Christmas v Beauchamp [1894] AC 607
- In re Wenham [1900] 1 QB 705
- Beecham Bros [1894] 1 QB 1
- In re A Debtor, 7 B. & C. 119
- The Debtors (No. 807/192) In re (Bankruptcy and Winding-up Cases Vol. vii, page 119)
- Hogg v. Bridges, 8 Thunt 200
- Ex parte Blain, 12 C. D. 522
- re A. Debtor, 1912 I. L. J. County Court Rep.
Full judgment
The original judgment as reported. Read the original PDF before relying on any passage.