HJ. PETRI ECONOMOU ν. CHRISTOFI CONSTANDI AND ANOTHERS. (V3) 1 CLR 29

HJ. PETRI ECONOMOU ν. CHRISTOFI CONSTANDI AND ANOTHERS. (V3) 1 CLR 29 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων (V3) 1 CLR 29 1894 July 19 [SMITH, C.J. AND FISHER, ACTING J.] HADJI PETRI ECONOMOU Plaintiff, v. CHRISTOFI CONSTANDI AND ANOTHER Defendants. BANKRUPTCY-DEBT NOT PROVED BEFORE SYNDICS-CREDITOR'S RIGHT TO SUE BANKRUPTS-FRAUDULENT BANKRUPTCY-OTTOMAN COMMERCIAL CODE, SECTIONS 210, 223, 245 AND 247. To an action brought on a promissory note, the defendants pleaded that, subsequently to the making of the note, they were adjudged to be bankrupts, and that the plaintiff, not having proved his debt before the syndics, was not entitled to maintain the action. The bankruptcy was a fraudulent one. HELD (reversing the decision of the Court below): That the facts alleged by the defendants disclosed no defence to the action, and that the plaintiff was entitled to sue on the note. APPEAL from the District Court of Nicosia. The action was brought by the plaintiff before a Village Judge to recover the sum of 287 piastres due on a bond. The defendants admitted the making of the bond, but alleged that since the making of the bond, they had become bankrupt; and that the plaintiff, not having proved his debt in the bankruptcy, was precluded from now maintaining this action. The Village Judge gave judgment for the defendants, and the plaintiff appealed to the District Court. The District Court having affirmed the decision of the Village Judge, the plaintiff again appealed. Chakalli, for the appellant. The plaintiff is not disentitled to maintain this action by the fact that he did not prove his debt before the syndics. There was no liquidation by arrangement ("concordat"), and could not be, as the bankruptcy was fraudulent and the defendants were convicted and sentenced as fraudulent bankrupts. Diran, for the respondents. The plaintiff should have proved his debt: the bankruptcy is not yet closed and the plaintiff's only right is to go before the syndics. Judgment: We are of opinion that the judgment of the District Court in this action cannot be sustained. If the bankruptcy be closed and the defendants have not been declared excusable, Section 246 of the Ottoman Commercial Code appears to us to be conclusive of the matter. The defendants could not be declared excusable in this case, as it is admitted that the bankruptcy was a fraudulent one. By not proving their debts before the syndics, creditors lose the right of participating in any division of the bankrupt's property that may he made, but it does not appear to us that their debts are barred, or that they lose the right of action against the bankrupt to which such debts give rise. If there is a liquidation by arrangement ("concordat") it would appear from Section 223 that they are bound by it, but in the present case there was not, and could not be any "concordat." If the bankruptcy be not closed, the plaintiff cannot maintain this action: (see Section 153), but must have recourse to the syndics There appears to be a dispute of fact as to whether the bankruptcy is closed or not, which we have no means of deciding upon, and the action must, therefore, be remitted to the District Court for further hearing. Appeal allowed. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο