Ex parte Pillay; Mayet v Pillay

• Jurisdiction: South Africa
• Judge: Holmes J
• Judgment Date: 29 January 1955
• Citation: 1955 (2) SA 309 (N)
• Hearing Date: 25 January 1955
• Court: Natal Provincial Division

B Holmes, J.:

Two petitions are before the Court, one by a debtor, who is a trader, for the surrender of his estate, the other by a creditor for the sequestration of the debtor's estate. In limine the debtor asks that both petitions be adjourned to 3 March, 1955, to enable him to arrange for a compromise with his creditors. He is supported in C this prayer by several creditors who say that the proposed compromise would be more advantageous than sequestration. But I can see no point in such an adjournment, for the sequestrating creditor says he is adamant in refusing to agree to any compromise, hence it cannot come into being. Mr. Hoskings, for the debtor, submitted that in that event an adjournment might enable one or more of the creditors to pay the D sequestrating creditor's claim rather than let the compromise fall through. But this is conjecture and there is nothing in the affidavits to support it. In the result the application for an adjournment is refused with costs.

The next question is whether the Court should now accept the surrender E at the instance of the debtor, or order provisional sequestration at the instance of the petitioning creditor. The facts are as follows. The petitioning creditor's claim against the debtor is for £347 in respect of promissory notes and cheques for moneys lent. The debtor admits the claim to the extent of £275 but disputes the balance. In August and F September 1954 the creditor started suing the debtor on the dishonoured notes and cheques. The debtor entered appearances to defend and pleaded that the creditor had agreed to give him extensions of time. These actions were not proceeded with because on 22 October, 1954 the debtor published a notice of his intention to apply for the surrender of his estate on 15 November, 1954. It appears from the petition for surrender G that certain other creditors had issued writs of execution against the debtor. On 15 November, he obtained an adjournment from the Court until 29 November, to enable him to negotiate with his creditors. On 29 November, he obtained a further adjournment until 17 January, 1955. On 10 December, 1954, the petitioning creditor wrote to the debtor complaining of the fact that he had not pursued his application for voluntary surrender, and warning him that unless he moved the Court for H the acceptance of the surrender by 13 December, 1954, he (the creditor) would petition the Court for an order for sequestration. The...