The opinion of the court was delivered by: BYERS
The Trustee seeks to review and reverse an order of the Referee dated September 13, 1951, permitting two creditors, father and son, named Cisarano, to file claims in this proceeding.
The order recites the petition filed September 5, 1951, the answers filed September 10, 1951, by the Trustee, the findings contained in the Referee's decision, the testimony taken before the Referee in a 21a examination on March 26, 1951, the 'formal' proofs of claim filed August 22, 1951, and provides as follows: 'Ordered, that the said 'formal' proof of claims be and they hereby are filed and allowed nunc pro tunc as of March 26, 1951, as an amendment to the proof taken before the Referee in Bankruptcy on March 27, 1951.'
The decision contains no citation of authority, statutory or otherwise, and presents a question of importance in the administration of the Bankruptcy Act, 11 U.S.C.A. § 1 et seq. The relevant chronology is:
January 8, 1951, voluntary petition, Chap. XI filed.
February 7, 1951, debtor adjudicated a bankrupt.
February 26, 1951, first meeting of creditors.
March 26, 1951, these creditors were examined under Sec. 21a, in connection with the Schedules which included the respective debts here involved.
May 25, 1951, time for filing these claims expired. Sec. 355, Bankruptcy Act.
August 25, 1951, six months' period would have expired for filing claims in an ordinary bankruptcy proceeding (Sec. 57(N) Bankruptcy Act).
Three days earlier than the date last mentioned, these claims were filed with the Referee who marked them 'filed late'. Thus the application to him, which he has granted as stated.
Reference to the August 25 date is made by way of reminder that the three months' limitation would not have been involved, if the proceeding had started in the guise which it later assumed. Whether that influenced the action of the Referee does not appear. If it be argued that it would be a harsh ruling that would exact of the creditor a prompter filing than would have applied in the conventional bankruptcy, the answer is that inadvertence in that respect is not to be attributed to Congress where the enactment is in the unmistakable terms of Sec. 355. The choice was legislative and the Courts do not possess the power of alteration or revision. This understanding seems to under lie the decision of In re Supernit, Inc., 3 Cir., 186 F.2d 130.
These creditors rely upon the benevolent policy of many courts in allowing so-called amendments of that which could be recognized as claims only by the most expert penetration of disguise, antedating the 1938 amendment to the Act.
These cases are referred to in Avidon v. Halpert, 2 Cir., 145 F.2d 884, in which the decision below, In re Strikalite, Ltd., D.C., 54 F.Supp. 419, of Judge Clancy, was affirmed. That too was a bankruptcy which started as an attempted arrangement, the adjudication following the petition at the end of five days. A corporate officer had testified in a 21a proceeding respecting unpaid salary items owing to him, but he did not attempt to file a claim until over six months had elapsed, following the first meeting of creditors. As a witness he referred to a memorandum in his pocket containing 'exact data' on the subject, but did not file it.
It may clarify the present problem to interject that there is no such deficiency in this case, for the checks to and from, forming the basis of these claims, were produced at a similar examination and received in evidence. Moreover, the claimant Pasquale Cisarano said at the close of his examination that his ...