In Re: of Dharamshi Pancha (Cause No. 55/1931.) [1931] EACA 13 (1 January 1931)

## INSOLVENCY JURISDICTION.

## Before SIR J. W. BARTH, C. J.

## IN THE MATTER OF DHARAMSHI PANCHA. CAUSE No. 55/1931.

Bankruptcy—debtor's petition by attorney for absent principal validity of.

Held (20-7-31):—That there is no valid objection to an attorney<br>signing a bankruptcy petition for an absent debtor if the power of attorney is wide enough to authorize such action.

Hogan for Attorney, refers to-

Ex parte Wallace in re Wallace 14 Q. B. D. 22;

Ex parte Frampton (1 De G. F. and J. 263).

RULING.—In his judgment in ex parte Wallace, BAGGALLAY, L. J., referred to ex parte Frampton as authority for an absent debtor's authorized agent being able to instruct a solicitor to appear on behalf of his principal to show cause against anadjudication of bankruptcy against him. In that case the petition was filed by a creditor. The power relied on in the caseof In re Wallace was expressed as follows: —" to commence and carry on or to defend at law or in equity all actions suits or other proceedings touching anything in which I or my ships or other personal estate may be in anywise concerned." In the present case the learned advocate for the petitioner relies on the following clause in the power of attorney: "To manageand transact all my affairs in Protectorate and Colony of Kenya and execute such deeds or instruments as may be necessary or most to my advantage and to use all lawful ways and means thereto as fully and to all intents and purposes as I might or could do if personally present and acting herein."

There are two main issues to be decided: first, can an. attorney of a debtor in any event sign a petition in bankruptcy for and on behalf of his absent principal; secondly, if so, does. the power of attorney in this case include such a power.

Bankruptcy is somewhat different from ordinary legal proceedings. It affects not only the whole of the property of the debtor and the claims of his creditors, but also places the bankrupt under prescribed disabilities until his discharge, and in my view it is of importance to decide whether or not an attorney can, under a general power, sign and file a bankruptcy petition on behalf of his principal. Rule 107 of the Bankruptcy Rules, 1927, impliedly gives power to a petitioner, whether a debtor or a creditor, to sign a petition out of the Colony.

The objection to a receiving order being made against a person residing outside the Colony would apply equally to a receiving order made on a creditor's petition.

Bowen, L. J., in *ex parte Wallace* asked:—"Why should not a man sign a bankruptcy petition by his attorney as well as any other document? " There was no sufficient answer to that question in the argument by the appellant's Counsel. The answer supplied by the L. J. J was in the affirmative and after a careful perusal of the relevant sections of the Bankruptcy Ordinance, 1930, and the Rules, I am of opinion that there is no valid objection to an attorney signing and filing a petition for an absent debtor if empowered to do so. In the case before me the clause of the power of attorney cited above is in my judgment wide enough to authorize the signature of the petition by the attorney, and I accordingly find that the petition is in order from that point of view.