clr/1965/1965_1_373.pdf

(7)and98 and Bankruptcy Rules, rules 4, 7, 16,39,40,41,51 (I)

(2), 58, 59, 60

(2), 128, 131and

1. Bankruptcy—Power of Court to adjourn of its own motion—Discretionary power—Adjournment of petition for fresh service—Failure of appellants to show that Court applied wrongprinciple. Partnership—Judgment against firm isjudgment against a partner and may be enforced against him individually—Such judgment wouldbesufficientfoundation for themaking of areceivingorder and adjudication order against each partner—Bankruptcy Law, Cap. 5,section 98, Bankruptcy Rules 131and
2. Service—Proof of service in Bankruptcy Petition—Provisions of section6

(2)of the Bankruptcy Law with regard toproof of service of thepetition apply only where the debtor does not appear at the hearing. The appellants in the inetant consolidated appeals complain by means of appeal No.4525 against a receiving order made bythe Court against thethird and fourth appellants and an order of the Court adjourning the Bankruptcy petition for 12 days to enable fresh service of thepetition tobeeffected on the first and second appellants ; and by means of appeal No. 4529 against a receiving order made against the first andsecond appellants following fresh service ofthe petition onthem. 373 CHARTERED BANK 1965 Oct 10, N o v 11 1 Ν I DROUS I O T I S &, C o , 2 ΝΙΓΟΙΑΟΙ DROUSIOTIS, 3 I VFMZIIOS DHOL^IOTIS, 4 SiNOKIK DjERFDJI \*J V ΤΗΓ CHMHIRM) RAN!· The appeal was mainly argued on thefollowing grounds

(1)The bankruptcy petition as regards the firstand second appellants should have been dismissed as one of the necessary ingredients under section 6

(2)of the Bankruptcy Law, Cap 5, regarding personal service onthe debtors, had not been estab­ lished The Court, on its own motion,had nopower to adjourn the petition for service purporting toactunder section 6

(2)Under rule 51 (I) of the Bankruptcy Rules service ofthe bankruptcy petition is personal service onthedebtors There is nothing in rule 128 to authorise substituted service on a firm under rule 51

(3)The affidavit onwhich the ordei for substituted service on thefirst appellant was founded was insufficient and such order should be set aside

(4)Thesecond, third and fourth appellants were notper­ sonally indebted under the judgment of the District Courtof famagusta fhey were liable only as partners of the firm (first appellant), anda receiving order should nothave been made against them personally The Supreme Court m dismissing the appeal— Held,per JOSEPHIDES,J , ZLKIA, Ρ, concurring and TRIANTA- rVLi.iDES, J, partly dissenting

(1)Itwill benoted that section 6

(3)provides that the Court " may" adjourn the hearing ofthe petition forany just cause, or" may "dismiss the petition asthe Court thinksjust These are matters ofdiscietion and the CourtofAppeal will not inter­ fere unless satisfied that thetrial Judge ha;> applied a wrong principle, and theonus of showing that theexercise ofthat discretion by thejudge wasnot justified onthe facts, is on the appellant

(2)Inthe exercise of its discretion to adjourn thepetition, as it did, wedonot think that the trial Court applied a wrong principle Weareof the view that both under the provisions of section 6

(3)of the Lawand rule 58 of the Bankruptcy Rules the trial Court wasclearly entitled to follow the course which it did

(3)Itwould seem that the provisions of section 6

(2)of the Bankruptcy Law, with regard tothe proof of the service ofthe petition apply only where thedebtor does not appear at the hearing

(4)The essential thing in service isthat documents served shall be brought to the personal knowledge of the person 374 whose concern it is (Re A debtor

(1938)4 All E.R. 92 at p. 95) ; the notice must reach the mind or attention of the person to whom it is directed (Re Be Cespedes

(1937)2 All E.R. 572 at p. 576). The general principle of law is that the defendant shall not by defective notice be condemned unheard because he has no knowledge of the proceedings against him (Porter v. Freudenburg

(1915)1 K.B. 858 at p. 889 ; Re A Judgment Debtor

(1936)3 All E.R. 767 at p. 774.

(5)We are of the view that if all general partners in a firm are duly served no service of the petition need by effected on the firm at the principal place of business.

(6)We are of the view that where, as in the present case, the principal place of business of a firm (where service may be effected under rule 128) virtually ceased to exist, the court is empowered to order substituted service under rule 51

(2); afortiori (as in this case), where personal service is effected on all the general partners (the second,third and fourth appellants) of the firm (the first appellant). We are satisfied that there was sufficient evidence before the Court tojustify the making of an order for substituted service.

(7)A judgment against a firm ofwhich the debtor isa general partner is ajudgment against him in his capacity of a partner, but he isjointly and severally responsible for all debts of the firm, and each debt, including ajudgment debt, may be enforced against him individually. Held,per TRIANTAFYLLIDES, J., in his partly dissenting judgment :

(1)In my opinion, sub-section

(3)of section 6 provides for courses open to a Court once it hasembarked upon the hearing, as such, of a petition and it cannot be resorted to when no such hearing can take place due to absence of proper service.

(2)In the present instance the course of adjourning the petition against respondents Nos. 1 and 2, for proper service, could properly be adopted on the strength of rule 58 of the Bankruptcy Rules. Once this is so, I have no difficulty in upholding the course taken in the matter by the trial Court because,though itbased it on the wrong provision, viz. sub-section

(3)of section 6,it wasacourse properly open to it both in law— rule 58—and on the facts of the case, also. Appeal dismissed with costs. Cases referred to : Re A Debtor

(1938)4 All E.R. 92 ; Re De Cespedes

(1937)2 All E.R. 572 at p. 576 ; Porter v. Freudenburg

(1915)1 K.B. 858 at p. 889 ; Re a Judgment Debtor

(1936)3 All E.R. 767 at p. 774 ; In Re A Debtor (No. 24 of 1935)

(1936)1Ch. 292. 375 1965 Oct. 10, Nov. 11 l . N . I. DROUSIOTIS & Co., 2. Nicoi-\os DROISIOTIS, 3. VKKIZLLOS I. DROUSIOTIS, 4. SlNORIK DJEREDJIAN V. THE CHARTERED BANK I 1965 Oct. 10, Nov. 11 l . N . 1. DROUSIOTIS & Co., 2. NICOLAOS D ROUSIOTIS, 3. VENIZELOS I. DHOUSIOTIS, Appeal. Appeal against the orders made by the District Court of Famagusta (Evangelides, P.D.C. & Kourris, D.J.), dated the 8.5.65 (Bankruptcy Petition No. 1/65) whereby inter alia a receiving order was made against the debtors. St. Pavlides and A. Antoniades, for appellants Nos.1,2 and 3. 4 . SlNOHIK DjEREDJIAN Appellant No.4 not represented. V. THE M. Montanios, for the respondents. CHARTERED BANK Cur. adv. vult. The facts sufficiently appear in thejudgment of the Court. ZEKIA, P.: Thejudgment of the Court will be delivered by Mr. Justice Josephides. JOSEPHIDES, J.: These aretwoconsolidated appeals made inthesame bankruptcy petition. Thefirstappeal (No. 4525) is (

1. a)against a receiving order made by the District Court of Famagusta against the third and fourth appellants and (
2. b)against an order of the Court adjourning the bankruptcy petition for 12 days to enable fresh service of the petition to be effected on the first and second appellants. The second appeal (No.4529) is against a receiving order made by the District Court of Famagusta against the first and second appellants following fresh service of the petition on them. The first appellant is a partnership registered under the provisions of the Partnership Law, Cap. 116, and thesecond, third and fourth appellants are the general partners of the aforesaid firm. The petitioning creditor (respondent) obtained judgment against all four appellants in the sum of £319,960.388 mils (with interest and costs) on the 14th November, 1964, in the District Court of Famagusta. A bankruptcy notice issued on the 8th January, 1965, under the provisions of section 3 of the Bankruptcy Law, Cap. 5, and Bankruptcy Rules 39and 40, in the prescribed form, wasserved onall appellants in the prescribed manner. They neither objected to such a bankruptcy notice nordid they file an affidavit under the provisions of Bankruptcy 376 Rule 41 which would have operated as an application to set aside the bankruptcy notice ;nor did they pay off the amount of the judgment debt or part thereof. The petitioning creditor filed his bankruptcy petition on the 27th February, 1965, which was made returnable on the 20th March, 1965. The third and fourth appellants were served personally by the Court bailiff on the 11th March and 13th March, 1965, respectively. In the case of the second appellant, copy of the petition was served for him by the Court bailiff on his brother, the third appellant ; and in the case of the first appellant (the firm) a copy of the petition was served by the bailiff on the third appellant, who is a general partner, but such service was effected at a place other than the principal place of business of the firm in Cyprus. Following the appearance of the parties on the first day of the hearing before the Court on the 20th March, 1965, copy of the petition was served again on the first three appellants on the 22nd March, 1965,but we are not here concerned with that service. On the 16th March, 1965, the second and third appellants filed, through their advocate, a notice of intention to oppose the petition under the provisions of rule 59, and they described themselves in the notice as " partners of N.I. Drousiotis & Co. of Famagusta " (the first appellant firm). This was an unconditional opposition. We shall deal with the contents of the opposition at a later stage of this judgment. On the 19th March, 1965, the fourth appellant likewise filed an opposition under rule 59, which was also unconditional. However, this appellant did not appear at the hearing of the present appeal although duly notified of the day of hearing. On the 8th May, 1965,the District Court made a receiving order against the third and fourth appellants. The Court also found that service on the first and second appellants was bad and, relying on the provisions of section 6

(3)of the Bankruptcy Law, Cap. 5, it adjourned the petition for 12 days to enable fresh service to be effected on these two appellants. Subsequently, substituted service was allowed on the filing of an affidavit and was duly effected on the first appellant {the firm), and personal service was effected on the second appellant. Eventually, the District Court made a receiving order against the first and second appellants on the 10th June, 1965. 1-77 1965 Oct. 10, Nov. 11 l . N . I. DROIJSIOTIS & Co., 2, NICOLAOS DROVSIOTIS, 3. VENIZELOS I. DROUSIOTIS, 4. SlNOHIK DjEREDJIAN V. THE CHARTERED BANK Josephides, J. 1965 T h e appeal was argued before us on the following grounds : j]' „ ι Ν I DROUSIOTIS & Co, 2 NICOLAOS

(1)T h e bankruptcy petition as regards the first and second appellants should have been dismissed as one of the necessary ingredients under section 6

(2)of the Bankruptcy Law, Cap. 5, regarding personal service ^ t o r s , had not been established. T h e Court, o n t h e No% DHOL'SIOTIS, 3 VbxizELo» I DROUSIOTIS, 4 SiNORIK DJEREDJIAN THE CHARTEHED _ Josephides, J. o n . l t s o w n m o t l o n - i i ι· ι > had no power to adjourn the petition for service purporting to act under section 6

(3).

(2)U n d e r rule 51

(1)of the Bankruptcy Rules service of the bankruptcy petition is personal service on the debtors. T h e r e is nothing in rule 128 to authorise substituted service on a firm under rule 51

(2).

(3)T h e affidavit on which the order for substituted service on the first appellant was founded was insuffi­ cient and such order should be set aside.

(4)T h e second, third and fourth appellants were not personally indebted under the judgment of the Dis­ trict Court of Famagusta. T h e y were liable only as partners of the firm (first appellant), and a receiv­ ing order should not have been made against them personally. With regard to the first ground of appeal it would be help­ ful if we quoted the relevant provisions of section 6 of the Bankruptcy Law, Cap. 5 : " 6

(1)A creditor's petition shall be verified by affidavit of the creditor, or of some person on his behalf having knowledge of the facts, and served in the prescribed manner.

(2)At the hearing of the petition, t h e Court shall require proof of t h e debt of the petitioning creditor, of the service of the petition, and of the act of bankruptcy, or, if more than one act of bankruptcy is alleged in the petition, of some one of the alleged acts of bankruptcy, and, if satisfied with such proof, shall make a receiving order in pursuance of the petition.

(3)T h e Court may adjourn the hearing of the peti­ tion either conditionally or unconditionally, for obtain­ ing further evidence, or for any other just cause or may dismiss t h e petition with or without costs, as the Court thinks just.

(5)If there are more respondents than one to the pe­ tition, the Court may dismiss the petition as to one or more of t h e m , and may order the case to be proceeded with against the other or others of them. 378

(6)Where the debtor appears onthe petition,and denies that he is indebted to the petitioner, or that heis indebted to such anamount as would justify the peti­ tioner in presenting a petition against him, theCourt, on such security (if any) being given asthe Court may require forpayment to the petitioner of any debt which may be established against him in duecourse oflaw, and of the costs of establishing the debt, may, instead of dismissing thepetition, stay all proceedings on the petition for such time as may be required for trial of the question relating tothe debt. 1965 Oct 10, Nov 11 1 N. I DROUSIOTIS & Co., 2 NICOLAOS DROLSIOTIS, 3. VENIZELOS I DHOUSIOTIS, 4 SlNORIh. DJEREDJιAN ν THE

(7)Where thedebtor appears onthepetition,and denies that heis indebted tothe petitioner, or that is indebted tosuch anamount as would justify the peti­ tioner in presenting a bankruptcy petition against him, the Court shall have jurisdiction for the trial ofthe question relating to such debt, subject to an appeal before the Supreme Court asherein provided and inthe meantime allproceedings on the petition shall be stayed pending the result of such trial as aforesaid.

(8)It will benoted that section 6

(3)provides that the Court " may " adjourn the hearing of the petition for anyjust cause, or " may " dismiss the petition as theCourt thinks just. These aremattersof discretion andtheCourt of Appeal will notinterfere unless satisfied that thetrial Judge has applied awrong principle, and the onus of showing that the exercise of that discretion by the judge wasnot justified on the facts, ison the appellant. As regards the service of the petition onthe first andse­ cond appellants in this case, it would seem that it was the fault or omission of the Court bailiff who didnotcomply with the provisions ofthe Bankruptcy Rules (rule 51

(1)and rule 128), i.e. inthe case ofsecond appellant, ageneral part­ ner, hedidnot serve personally as required under rule51, but he served on the brother of the second appellant who is the third appellant ; and inthe case of the firm (first appel­ lant) hedid not serve at the principal place of business of the firm although he delivered copy of the petition to the third appellant who isageneral partner in the firm. The petitioner did not fail in anyof his duties or obli­ gations laid down in theBankruptcy Lawand Rules. On the contrary, he duly filed his petition, he provided extra copies for service, he paid to theCourt registry thepres379 CHARTERED BANK Josephides, J. 1965 Oct. io, Nov. 11

1. N. I. DHOUS I O T I S & Co.,
2. NICOLAOS DROISIOTIS,
3. YKNIZELOa I. DROUSIOTIS,
4. SiNORικ DJEREDJ [AN v. THE CHARTERED BANK Josephides, J. cribed fees, including service fees, andthere was nothing which he was bound to do and which he failed to do. The question then arises why should the petitioner be penalized for theCourt bailiff's omission ? Why should his petition be dismissed and not adjourned for fresh service ? In the circumstances of this case, would it be reasonable for this Court tohold that the Court bailiff's failure tocomply with the rules astoservice and the necessity forfresh service on two out of the four debtors wasnot a "just cause " for the trial Court toadjourn the hearing of the petition and thatit erred in principle in the exercise ofits discretion ? We think not. We are of the view that both under the provisions of section 6

(3)ofthe Law and rule 58 ofthe Bankruptcy Rules the trial Court was clearly entitled to follow the course which itdid. Bankruptcy Rule 58provides that " where there are more respondents than one to a petition, therules as to service shall be observed with respect to each oneof them ; but where all have not been served, the petition may be heard, separately orcollectively, astothose who have been served, and separately or collectively as to those notthen served according as service upon them is effected " . In this case the trial Court heard thepetition fully with regard to thethird andfourth appellants andmade a re­ ceiving order against them ; and inthe case of thefirstand second appellants it decided the issue of the service of the petition on them by theCourt bailiff holding that the rules as toservice had notbeenobserved. The Courtthen adjourned the petition anddirected fresh service onthese twoappel­ lants. Inthe exercise of its discretion toadjourn the peti­ tion asit did, we do not think that the trial Court applied a wrong principle. Two further questions which, wethink, should beconsi­ dered in deciding this matter are— (a) Need service of the petition be proved ona debtor if he is present in person or represented by counsel at the hearing of the petition ? and (b) Ifall general partnersareserved need service be effected on the firm atthe principal place of business ? With regard to (a), it would seem that the provisions of section 6

(2)ofthe Bankruptcy Law, with regard to the proof of theservice of thepetition apply only where thedebtor 380 does not appear at the hearing. We are confirmed in this view by the following provisions in the same Law: (i) theprovisions of sub-sections

(6)and

(7)of section 6 which provide for cases where the debtor appears on the petition and which do not require proof of the service ofthepetition in such cases ; (ii) theprovisions of rule 60

(2)oftheBankruptcy Rules which laydown that " ifthe debtor appears toshow cause against the petition, the petitioning creditor's debt, and the act of bankruptcy, or the matters notified by the debtor to be disputed, shall be proved ;and if further time shall be desired bythe petitioning creditor or by the debtor, the Court may, where it is satisfied that theextension willnot be prejudicial tothegeneralbodyof creditors, grant such further time (ineach case notexceeding seven days) as it may think fit". It will be observed that there is no provision in that rule for proof of service of the petition on the debtor. The essentialthinginserviceisthat documents served shall be brought to the personal knowledge oftheperson whose concern it is (ReA debtor

(1938)4AllE.R.92at page 95); the notice must reach the mind or attention of the person to whom itis directed (ReDeCespedes

(1937)2AllE.R.572 at page 576). Thegeneralprincipleoflawisthat the defendant shall not by defective notice be condemnedunheardbecause he has no knowledge of the proceedings against him (Porter v. Freudenburg

(1915)1K.B.858at page 889;Re A Judgment Debtor

(1936)3 AllE.R.767at page 774). · In the present case, although the second appellant was not served personally he filed a notice of opposition under rule 59,through his counsel, four days before the date originally fixed for the hearing of the petition andone month before it was eventually heard, stating that heintended to oppose the making of a receiving order and that he would dispute paragraph 3 (b) of the petition (regarding certain bills of exchange held by the petitioner as security), and /alleging further that thepetition wasdefective onthe ground that the provisions of Bankruptcy Rules 7 and 16 had not been complied with, i.e.that the title shown in the petition was not in accordance with the provisions of rule 7 and that the petition didnotsetouttheLawor Rules on which itwas based (rule 16). It will be observed that no objection was taken by the appellant regarding the service of the petition on him, and the opposition was unconditional. All appel381 1965 Oct. 10, Nov. 11 l . N . I. DROUSIOTIS & Co.,

1. NlCOLAOS DROUSIOTIS,
2. VENIZELOS I. DROUSIOTIS,
3. SINORIK DjEREDJlUN V. THE CHARTERED BANK Josephides, J. 1965 Oct. 10, Nov. 11 l . N . I. DROUSIOTIS & Co., lants (debtors) were represented by eminent counsel from the very first day fixed for hearing before the Court and all appearances and adjournments, viz. on the 20th March, 1965, 27th March, 1965 and 3rd April, 1965, were unconditional and without protest.
4. NICOLAOS DROUSIOTIS,
5. VENIZELOS I. DROUSIOTIS,
6. SINORIK DJEREDJIAN v. THE CHARTERED BANK Josephides, J. In fact this was acase where aslip was made in the matter of service by the Court bailiff ; but what is important is that the debtors received notice of the petition, had knowledge of the proceedings against them and they werenot condemned unheard. In Re A Debtor

(1938)4 All E.R. 92, at page 97, Sir Wilfrid Greene, M.R. was of the view that where a slip was made in the matter of service the Bankruptcy Registrar ought not to have allowed that to lead to a dismissal of the petition, but ought to have given facilities for remedying it ; and that that could quite easily have been done by fixing a different date for the hearing of the petition. The following are the relevant extracts from hisjudgment (at pages 96 and 97): " It is no exaggeration to say that the practice in regard towrits,and the requirements of the law in regard to the service of writs, are, and have always been,regarded as matters strictissimijuris. In the case of the service of a bankruptcy petition, Icanseenothinginthesectionand rules which can fairly be construed as relaxing the strict requirements which are to be found in the case of the sendee of writs and other documents under the rules of the Supreme Court." (At page 96). " In the present case, as I say, the registrar dismissed the petition, but I cannot think that, in doing so, he can have had properly before his mind the fact that, on the facts of this case, the debtor has been fortunate enough to escape on a matter of great strictness, and also that the result of dismissing the petition may be to worK serious injustice. This is acase where a slip was made <in the matterofservice, and itseemstomethat the registrar ought not to have allowed that to lead to a dismissal of the petition, but ought to have given facilities for remedying it. That could quite easily have been done by fixing a different date for the hearing of the petition, which would have meant that both the order indorsed on the petition and the order for service out of thejurisdiction, in so far as it deals with the date of hearing, would have to be amended by subsequent order, and that, that date having been fixed, the petitioning creditor, if he could successfully do so, would be entitled • to serve the debtor. That seems to me to be the 382 course which he ought, in order to do justice, to have followed, and I cannot see any adequate ground for dealing with the matter in the way in which he did." (At page 97). With regard to (

1. b)above, we are of the view that if all general partners in a firm are duly sened no service of the petition need be effected on the firm at the principal place of business. We base that view on the following considera­ tions : (Ϊ) under the provisions of rule 128, where any notice of petition for which personal service is necessary is sened at the principal place of business of the firm in Cyprus on any person having at the time of senice control or management of the partnership business there, or upon any one or more of the general partners at the principal place of business, such notice or petition is deemed to be duly served on all the members of a firm ; (
2. ii)under the provisions of rule 131, a receiving order made against a firm shall operate as if it were a re­ ceiving order made against each of the general partners in the firm ; and where such an order is made the general partners shall submit a state­ ment of their partnership affairs, and each one of such partners shall submit a statement of his se­ parate affairs ;.and (iii) under the provisions of rule 132, no order of adju- . dication can be made against a firm in the firm name, but it shall be made against the general partners individually. Furthermore, where judgment for a debt has been re­ covered against a firm and a bankruptcy notice in the usual form and following the judgment has been served on one of the partners only, at a place other than the principal place of business of the firm and has not been complied with, a receiving order can properly be made against that partner on the judgment creditor's petition (in Re A Debtor

(1936)1 Ch. 292). The question whether the first and second appellants waived the irregularity of the service of the petition on them, by the fresh steps taken by them in the proceedings uncondi­ tionally and without protest, was not raised or argued before us and we will, therefore, leave it open. This concludes the first ground of appenl. We need deal briefly with the remaining grounds. 383 1965 Oct. 10, Nov. 11 l . N . I. DROU­ SIOTIS & Co.,

1. Ν ICOLAOS DROUSIOTIS,
2. VENIZELOS I. DROUSIOTIS.
3. SlNORIK DJEREDJIAN v. THE CHARTERED BAN'K Josephides, J. 1965 Oct.
4. Nov. II
5. Ν . I. DROU­ SIOTIS & Co.,
6. NICOLAOS DROUSIOTIS,
7. VENIZEI.OS I. DROUSIOTIS,
8. SINOHIK DjEHEDJIAN With regard tothe second and third grounds, weare of the view that where, as in thepresent case, theprincipal place of business of a firm (where senice maybe effected under rule 128) virtually ceased to exist, theCourt is em­ powered to order substituted service under rule 51

(2); afortiori (as inthis case), where personal senice is effected on all the general partners (thesecond, third and fourth appellants) ofthe firm (thefirstappellant). Weare satisfied that there was sufficient evidence before the Court to justify the making of an order forsubstituted s e n k e . t>. THE CHARTERED BANK Josephides, J. The fourth and final ground ofappeal was that the second, third and fourth appellants were not personally indebted under the judgment of the District Court of Famagusta and that, as they were liable only as partners of the firm, a re­ ceiving order should not have been made against them per­ sonally. Inthe first place, the office copy of the judgment of the District Court of Famagusta, produced in evidence, shows that these three appellants were personally indebted to the petitioner, and the judgment is final andhas not been set aside. A bankruptcy notice was duly served on them under the provisions of the Bankruptcy Law but they neither complied with it nor didthey take any step to have it set aside onthe above ground or, indeed, onany ground. In any event, even ifthe said judgment of£319,960.388 mils was a judgment ugainst the firm only (the first appellant) it would really make nodiriVrence forpractical purposes, as in lawthis nould bea sufficient foundation for the making of a receiving wrdcr and anadjudication order against each one of thegeneral partners, namely, thesecond, third and fourth appellants. Ίhis view is supported by section 98 of our Bankruptcy Law, Cap. 5,which lays down that " any creditor whose debt is sufficient to entitle him topresent a bankruptcy petition against all thepartners of a firm may present a petition against anyone or more partners of the firm without including the others " ; andby rules 131 and 132 of the Bankruptcy Rules, which provide that a receiving order made against a firm shall operate asifit were a receiving order made against each ofthe general partners inthefirm, and that anorder of adjudication shall be made against the general partners individually but not against the firm in the firm name. As Lord Wright, M.R. said inInReA Debtor (No. 24 of 1935)

(1936)1Ch. 292 at page 29<S : " Itis perfectly true that in form thejudgment was against a firm of Robert Jackson &Co. of which the debtor was a partner, but none the less it is ajudgment against thedebtor in his capacity 384 of a partner. He isjointly and severally responsible for all the debts ofthefirm ;andeach debt, including this judgment debt may be enforced against him individually, and, therefore, is a final judgment against him even though it is also a judgment against someone else," 1965 Oct 10, Nov. 11 l . N . l . DROUSIOTIS & Co.,

1. NICOLAOS All the above make it abundantly clear that a judgment against a firm of which the debtor isageneral partner is a judgment against him in his capacity of a partner, but he is jointly andseverally responsible for all debts of the firm, and eachdebt, including ajudgment debt, maybeenforced against him individually. DROUSIOTIS,
2. VENIZELOS I. DROUSIOTIS,
3. SlNORIK DJEREDJIANV. THE CHARTERED BANK We need hardly state that the objections raised by the appellants are matters of technicality and that in actual fact allof them had ample notice and knowledge of the proceedings and had the opportunity of being heard on the merits and defending their case. In conclusion it should be stated that it is not in dispute that the firm andallthegeneral partners (all appellants) are insolvent. Moreover, the appellants do not allege that they have any prospects of any assets coming into their hands in the near future so asto place them in a position to pay their debts. In their evidence before the trial Court, the appellants admitted that the firm had ceased carrying on any business and that they had been collecting money due to them and paying out their liabilities. In these circumstances we fully endorse the statement of the trial Court in their judgment that " i t is of the utmost importance, in view of their insolvency, to see not only that the assets are not wasted, but at thesame time that the liabilities are paid proportionately with due regard to priorities. It is, therefore, to the public interest that a receiving order should be made as early as possible ". For these reasons both appeals are dismissed with costs. TRIANTAFYLLIDES, J.: I have had the benefit of perusing the learnedjudgment of mybrother Judge, Mr. Justice Jose% phides and, though I agree in general with the outcome of these appeals, I am afraid that I cannot agree with the interpretation given to sub-section

(3)of section 6 of the Bankruptcy Law, Cap. 5, in the said judgment. I will not go into any great length in giving my reasons ; I would like only to state that, in my opinion, sub-section

(3)of section 6 provides for courses open to a Court once it has 385 Josephides, J. 1965 Oct 10, Nov. 11 embarked upon the hearing, as such, of a petition and it cannot be resorted to when no such hearing can take place due to absence of proper senice. 1 Ν I DROU­ SIOTIS & Co, NICOIAOS 2 DKOLSIOI I S 3 VLNIZELOS I DROISIOTIS, 4 SINOKIK This is apparent both from the contents of the said sub­ section as well as from its place in the whole scheme and context of section 6 ; in particular, it is useful to note the contents of sub-section

(2)which follows immediately before sub-section

(3). DJEREDJIAN v. THE CHARTERED BANK Tnantafyiiides, J. In the present instance the course of adjourning the peti­ tion against respondents Nos. 1 and 2, for proper service, could properly be adopted on the strength of rule 58 of the Bankruptcy Rules. Once this is so, I have no difficulty in upholding the course taken in the matter by the trial Court because, though it based it on the wrong provision, viz. sub­ section

(3)of section 6, it was a course properly open to it both in law—rule 58—and on the facts of the case, also. Subject to what I have stated about the interpretationof sub-section 6, I agree, otherwise, that these appeals should be dismissed. Appeals dismissed with costs. 3S6