In Re: Dahyabhai Desaibhai Patel (Bankruptcy Cause No. 14/32) [1935] EACA 140 (1 January 1935)

## BANKRUPTCY JURISDICTION.

Before GAMBLE, Ag. J.

## IN RE DAHYABHAI DESAIBHAI PATEL (lately trading as Universal Commercial Co.) Debtor.

Bankruptcy Cause No. 14/32.

Bankruptey—Practice—Application for discharge—Opposition by non-proving creditor—Bankruptcy Ord., 1930, sec. 28 (7).

$Held$ (17-6-35).-A creditor who has not proved in the bankruptcy is entitled to oppose an application of the bankrupt for discharge.

Kasliwal for the debtor.

Amin for creditors.

ORDER.—In this application for discharge it is admitted that two years not having elapsed since the conditional order of discharge was made, the application is premature and must be dismissed.

Mr. Amin representing three creditors who have proved and two who have not proved asks for costs. The question then arises whether creditors who have not proved are entitled to be heard in opposition to an application for discharge.

The relevant section of the Bankruptcy Ordinance is section. 28 (7) read with rule 185. The apparent inconsistency between the rule and the section as regards notice to creditors who have not proved is explained in the judgment of BIGHAM J. in In re Spratley (1909, 1 K. B. 559). Section 28 (7) of the Ordinance enacts that the Court on an application for discharge may hear the Official Receiver and the trustee and may also hear any creditor. This I consider must mean any creditor whether he has proved or not. Were it sought to limit the hearing to proving creditors. only, I should have expected to find the words which occur in section 17 $(4)$ dealing with the public examination and which read: "Any creditor who has tendered a proof, or his representative authorized in writing, may question the debtor concerning hisaffairs and the causes of his failure."

It is settled practice under rule 185 which is almost a verbatim copy of the English rule 227, that notice of the application for discharge must be sent to creditors whether they have proved or not. There would not appear to be much object in serving the creditors who have not proved if they are not to be allowed to appear and oppose the application.

For the above reasons I am of opinion that Mr. Amin was entitled to appear on behalf of those creditors who have not "proved.

As the application was entirely misconceived and the creditors were put to the expense of appearing and opposing, I see no reason why they should not have their costs.

I accordingly dismiss the application for discharge with costs against the applicant to the extent of Sh. 150 to be paid out of the estate.