| |
|
|
|
| For business information, annual reports, laws, ordinances, regulations and articles. |
|
|
|
CHAPTER - VII
Registration Of Firms
56. Power to exempt from application of this Chapter:
The
Comments
A.B. & Co., is a newly constituted firm and commences business without registering
their firm, X is their creditor, X may sue A.B & Co., but, A, B & Co., or the
partners thereof cannot sue Y, who is their debtor, unless before instituting the suit
they effect registration of their firm under the Act. Even in the suit by X against A. B
& CO., the latter can not claim a set off against X, unless the firm is registered
under the Act.
If however, the partners in A.B. & Co., wish to dissolve the partnership, they may
file a suit for dissolution although the firm is not registered or they may file a suit
against the debtors of the firm after dissolution. But one of the partners may not file a
suit against the other partners e.g. for contribution of moneys borrowed by him under an
express agreement for the purposes of the partnership, unless the firm is registered.
Where the firm is registered, the statements required by, and made under Sec. 58 will be
conclusive evidence against each of the partners under Sec. 68.
57. Appointment of Registrars:
(1) The
Comments
This Section provides that the Provincial Government may appoint Registrars of firms
for the purpose of this Act, and may define the area within which they must exercise their
powers and perform their duties. Every Registrar is deemed to be a public servant within
the meaning of Section-21 of the Pakistan Penal.
58. Application for registration:
(1) The registration of a firm may be effected at any time by sending by post or
delivering to the Registrar of the area in which any place of business of the firm is
situated or proposed to be situated, a statement in the prescribed form and accompanied by
the prescribed fee, stating -
(a) the firm name,
(b) the place or principal place of business of the firm.
(c) the names of any other places where the firm carries on business,
(d) the date when each partner joined the firm,
(e) the names in full and permanent addresses of the partners, and (f)
(f) the duration of the firm.
The statement shall be signed by all the partners, or by their agents specially authorised
in this behalf.
(2) Each person signing the statement shall also verify it in the manner prescribed.
Comments
The application for registration must be made to a Registrar appointed under
Section-57.
The registration of a firm may be effected at any time by sending by post or delivering to
the Registrar of the area in which any place of business of the firm is situated or
proposed to be situated, a statement in the prescribed form and accompanied by the
prescribed fee, stating:-
(a) the firm name.
(b) the place or principal place of business of the firm.
(c) the names of any other places where the firm
(e) the names in full and permanent addresses of the partners, and
(f) the duration of the firm.
Such a statement is to be signed by all the partners or by their agents specially
authorised in this behalf. Each person signing the statement must also verify it in the
prescribed manner. When the Registrar is satisfied that the provisions of section-58 have
been duly complied with, he will entertain the statement for its Registration.
59. Registration:
When the Registrar is satisfied that the provisions of section 58 have been duly
complied with, he shall record an entry of the statement in a register called the Register
of Firms, and shall file the statement.
Comments
Registration raising presumption.- The partnership was registered with the
Registrar of Firms. It was difficult to see how the appellants could possibly contend that
firm had never existed. But assuming that they could advance this submission, it was
obvious that it could be established only by very cogent evidence.- (Muhammad Ishaque V
Erose Theatre PLD-1973 Kar. 522).
60. Recording of alterations in firm name and principal place of
business:
(1) When an alteration is made in the firm name or in the location of the principal
place of business of a registered firm, a statement may be sent to the Registrar
accompanied by the prescribed fee, specifying the alteration, and signed and verified in
the manner required under section 58.
(2) When the Registrar is satisfied that the provisions of sub-section (1) have been duly
complied with, he shall amend the entry relating to the firm in the Register of Firms in
accordance with the statement, and shall file it along with the statement relating to the
firm filed under section 59.
61. Noting of closing and opening of branches:
When a registered firm discontinues business at any place or begins to carry on
business at any place, such place not being its principal place of business, any partner
or agent of the firm may send intimation thereof to the Registrar, who shall make a note
of such intimation in the entry relating to the firm in the Register of Firms, and shall
file the intimation along with the statement relating to the firm filed under section 59.
62. Noting of change in name and addresses of partners:
When any partner in a registered firm alters his name or permanent address, an
intimation of the alteration may be sent by any partner or agent of the firm to the
Registrar, who shall deal with it in the manner provided in section 61.
63. Recording of changes in and dissolution of a firm:
(1) When a change occurs in the constitution of a registered firm any incoming,
continuing or outgoing partner, and when a registered firm is dissolved any person who was
a partner immediately before the dissolution, or the agent of any such partner or person
specially authorised in this behalf, may give notice to the Registrar of such change or
dissolution, specifying the date thereof; and the Registrar shall make a record of the
notice in the entry relating to the firm in the Register of Firms, and shall file the
notice along with the statement relating to the firm filed under section 59.
(2) Recording of withdrawal of a minor: When a minor who has been admitted to the
benefits of partnership in a firm attains majority and elects to become or not to become a
partner, and the firm is then a registered firm, he, or his agent specially authorised in
this behalf, may give notice to the Registrar that he has or has not become a partner, and
the Registrar shall deal with the notice in the manner provided in sub-section (1).
Comments
S.63- Reconstitution of old firm - no new partnership.- Assessee firm comprising
two partners originally registered under partnership deed and granted registration from
year to year. Subsequently, a third partner taken in and a new partnership executed.
Shares of new partners in new set up reshuffled. Not a new partnership, but only a
reconstitution of same old firm not hit by S.26-A (5) of Income Tax Act (XI of 1922) and
firm as reconstituted entitled to renewal of registration or re-registration.-
(Commissioner of Income Tax, Rawalpindi V Ahmed Shafi and Brothus:- 1981 PLD 62).
Form of Notice.- There is no prescribed form of Notice under this Section. What is
important is that the Registrar should be informed that a change has taken place in the
constitution of the firm. A partnership firm consisting of A, B and C was dissolved by
agreement with a view to have a division of the business of the firm conducted at two
places between them A and B take the business at one place and carried the business in the
same name, and C took the business at another place. Copy of this agreement was sent to
the Registrar of firm under section-63 with an intimation that C had ceased to be a
partner of the firm. It was held that this was sufficient compliance with Section-63 of
the Act. AIR 1956 Punj-24 = ILR 1957 Punj 27 (DB).
64. Rectification of mistake:
(1) The Registrar shall have power at all times to rectify any mistake in order to
bring the entry in the Register of firms relating to any firm into conformity with the
documents relating to that firm filed under this Chapter.
(2) On application made by all the parties who have signed any document relating to the
firm filed under this Chapter, the Registrar may rectify any mistake in such document or
in the record or note thereof made in the Register of Firms.
Comments
By Virtue of Section-64 the Registrar is empowered to rectify any mistake in the
Register of firms bringing it in conformity with the documents of the firm. Beside that
the signatories of any document relating to the firm, may also move an application to the
Registrar for rectifying any mistake in such document.
65. Amendment of Register by order of Court:
A court deciding any matter relating to a registered firm may direct that the
Registrar shall make any amendment in the entry in the Register of Firms relating to such
firm which is consequential upon its decision; and the Registrar shall amend the entry
accordingly.
66. Inspection of Register and filed documents:
(1) The Register of Firms shall be open to inspection by any person on payment of such
fee as may be prescribed.
(2) All statements, notices and intimations filed under this Chapter shall be open to
inspection, subject to such conditions and on payment of such fee as may be prescribed.
67. Grant of copies:
The Registrar shall on application furnish to any person, on payment of such fee as
may be prescribed, a copy, certified under his hand, of any entry or portion thereof in
the Register of Firms.
68. Rules of evidence:
(1) Any statement, intimation or notice recorded or noted in the Register of Firms
shall, as against any person by whom or on whose behalf such statement, intimation or
notice was signed, be conclusive proof of any fact therein stated.
(2) A certified copy of an entry relating to a firm in the Register of Firms may be
produced in proof of the fact of the registration of such firm, and of the contents of any
statement, intimation or notice recorded or noted therein.
Comments
Object of the section. The object of this section is to compel members of a firm to
have all subsequent changes in the constitution of a Registered firm notified to or
"registered" with the Registrar of firms. This is carried out by providing that
any statement intimation or notice recorded in the Register shall be conclusive proof of
the facts stated therein, as against any person by whom or on whose behalf the same was
signed in other words, he will not be able to set up a state of affairs different from
that which he has caused to be stated in the Register. But a third party whose name is not
in Register can prove that a particular person (whose name is not in Register can prove
that a particular person (whose name is not recorded in the Register of Firms) is a
partner nonetheless. The importance, or rather the compelling force of the section may be
shown by the following example.
Illustration.-
A, B and C are partners in a registered firm. A retires. It will be as necessary for A
as for B and C to give public notice of his retirement which under Sec. 72 of this Act,
includes notice to the Registrar. If this is not done, A will be as much liable for the
acts of the continuing partners or of the firm as if A had continued to be a member of the
firm. And on the other hand the firm will be liable for any act purporting to be done by A
on behalf of the firm after retirement.-Sec Section-32 (3).
Oral Evidence.- Oral evidence of Registration of a firm is not admissible. PLD -
1960 Kar. 736 AIR-1955 A vind. Prod-44.
69. Effect of non-registration:
(1) No suit to enforce a right arising from a contract or conferred by this Act shall
be instituted in any Court by or on behalf of any person suing as a partner in a firm
against the firm or any person alleged to be or to have been a partner in the firm unless
the firm is registered and the person suing is or has been shown in the Register of Firms
as a partner in the firm.
(2) No suit to enforce a right arising from a contract shall be instituted in any Court by
or on behalf of a firm against any third party unless the firm is registered and the
persons suing are or have been shown in the Register of Firms as partners in the firm.
(3) The provisions of sub-sections (1) and (2) shall apply also to a claim of set-off or
other proceeding to enforce a right arising from a contract, but shall not affect-
(a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a
dissolved firm, or any right or power to release the property of a dissolved firm, or
(b) the powers of an official assignee, receiver or Court under the
Comments
S. 69 is one of the most important sections in the Act, It is because of this section
that it would be in the interests of the partners to get the firms registered although,
under the Act such registration is not compulsory.
It will be seen from the above given provisions of this section, that it lays down four
rules, the analysis of which are given as follows-
Rule.-I (S.69(1)- on analyzing Rule- 1 one finds that it bars the right of any
parsons suing as a partner in the firm to enforce a fight arising from a contract or
conferred by the Partnership Act against either-
(1) the firm or
(2) any present or past member of the firm-
Unless the firm is registered and the person suing is or has been shown in the Register of
Firms as a partner in the firm.
This Rule laid down in s.69(1) is confined to the effect of non-registration of a firm in
case of legal proceeding between the partners inter se. A partner (or a person claiming to
be or to have been a partner) cannot bring a suit to enforce a right arising from a
contract or conferred by this Act, against the firm or against his co-partner, unless the
firm is registered and the name of the partner suing appears in the Register of Firms as a
partner in the firm.
The difficulty caused by this rule may be got over by getting registration of the firm
effected at any time before the suit is filed. Registration of the firm however, can be
affected only if the statement required to be furnished to the Registrar of Firms is
signed by all the partners or their specially authorised agents and duly verified (S.58),
and when disputes have arisen between partners, it is not likely that they would all join
in doing so. The only remedy of the partner or partners desiring to bring a suit in such a
case will be to ask for dissolution of the firm and accounts or for accounts, if the firm
is already dissolved.
An interesting point has been raised in some cases under this section. Is registration of
a firm a condition precedent to the filing of a suit? In other words, must such
registration necessarily take place before the suit is filed, on the ground that such
registration would operate retrospectively? some decisions (mainly from the Indian High
Courts of Nagpur and Calcutta) have held that a suit by an un-registered firm can be
validated by subsequent registration. However, several other High Courts (including the
High Courts of Bombay, Madra Patna and Lahore) have held that such subsequent registration
cannot cure a defect which existed when the suit was instituted. These decisions have
taken the view that such a suit is non est. i.e. non existent in the eyes of law, and
should therefore be dismissed at the threshold. It is of Course, open to the firm to
withdraw the suit, get itself registered and then file a fresh suit. Needless to mention,
the fresh suit should not be time barred.
It is submitted that the latter view namely that subsequent registration does not cure the
technical defect) is more sound and now also finds support in the decision of Supreme
Court of India in C.I.T AP V Jaya Lakshmi Rice and oil Mills-(AIR 1971 Sc. 1015).
Rule-II (S. 69(2).- S.69(2) deals with enforcing claims by the firm against third
parties, and prohibits the enforcing in a suit of any right arising from a contract
against a third party, unless the firm is registered and the persons suing are, or have
been shown in the Register of Firms as partners in the firm.
One important point is to be noted in connection with this Rule. This section does not
affect the right of a third party to proceed against the firm or its partners, even though
un-registered nor does it affect the right of an official assignees to realize the
property of an insolvent partner.
It is also important to note that Act does not say that any transaction of an
un-registered firm will be invalid; it merely says that a firm will not be allowed to take
the assistance of a civil court, except upon the condition precedent that it is
registered. Registration may be affected by a firm at any time, before filing a suit or
taking other civil proceedings in a Court against third parties.
Problems.- 1. A & B Co., as registered as a partnership firm in 1988, with A, B
and C as partners. In 1989, A dies in 1990, B and C sue X in the name and on behalf of A
& Co., with fresh registration, is the suit maintainable? What difference would it
make, if in 1990 B and C had taken a new partner D, and Then filed a suit against X
without fresh registration?
Ans.- The suit is maintainable without fresh registration. If an additional partner
D had come into the firm as a partner, and his name had not been entered in the register
in accordance with notice of a change in the constitution of the firm given to the
Registrar, the firm as then constituted could not sue because although it was a registered
firm, D one of the persons suing, would not be shown in the Register of firms as a partner
in the firm at the date of the suit. (Pratapchand V Jehangirji, 42 Bom. L.K. 487).
2. A, B & Co., is a registered partnership firm started in 1985, with A and B as
partners. In 1986 C & D were taken as additional partners of A B & Co., In 1987 A
and B retired from the firm without dissolution, and the business was continued by C and D
as before in the name of A B & Co. These changes in A B & Co, were not notified to
the Registrar of Firm. In 1988 A. B & Co., filed a suit against P to recover from him
As 500/- due by P to the old firm of A, B & Co. P wants to resist the claim and
contends that he does not owe any money to the plaintiff from A, B & Co. as
constituted at the time of the suit. State what advice you will give to P for his defense
give reasons for your answer.
Ans.- The firm as now constituted cannot sue P, because though it is a registered
firm C and D, the partners suing are not shown in the Register of Firms as partners in the
firm at file date of the suit.
Rule-III (S.69(3).- Under this rule, the disabilities mentioned in the preceding
two Rules extend also to claim of Set-off and to other proceedings to enforce any right
arising from a contract.
Two important exceptions are however, made to the rules contained in those sub-sections.
The first exception seems to have been made on equitable grounds, and the second on the
ground of convenience. The first exception allows partners even in case of an
un-registered firm, to enforce their right to sue for dissolution and accounts or to ask
for accounts where the firm has already been dissolved. This sub-clause also makes it
clear that it will not be necessary to have registration of a firm effected where a suit
or any legal proceedings are instituted to realize the property of a dissolved firm, as
for instance, a suit to recover a debt due to the firm.
The second exception saves the powers of an official assignee, receiver or court to
realize the property of an insolvent under the insolency Acts.
Rule-IV (S.69(4)).- This Rule provides that the above Rules do not apply:-
(a) to firms or to partners in firms which have no place of business in Pakistan, or whose
places
of business in Pakistan are situated in areas to which by notification under section 55,
this chapter does not apply; or
(b) to any suit or claim of set-off not exceeding Rs 100 in value, or to any proceeding in
execution, or other proceeding incidental to, or arising from, any such suit or claim.
Clause (a) above, exempts from the operation of s. 69 firms whose places of business are
all outside Pakistan or in areas exempted from the operation of this Chapter under S. 55.
Such firms can institute suit or other legal proceedings or plead set-offs without being
registered in any court in Pakistan otherwise having jurisdiction to entertain the suit or
other legal proceedings.
Clause (b) above states a rule which is a half-hearted attempt on the part of the
legislature to took at the matter of registration from the point of view of persons
engaged in business on a very small scale. It exempts from the operation of this section
suits and claims of set-off not exceeding the meager amount of one hundred rupees; in
respect of matters other wise triable by the various small causes courts.
Filing of suit by un-registered firm effect.- Partners of un- registered firm-
held, could not file suit under a contract in their own name as such suit would be barred
under S. 69 of the Act. (Overseas Containers Ltd., & another V Muhammad Iqbal &
another. 1988 CLC 461.
70. Penalty for furnishing false particulars:
Any person who signs any statement, amending statement, notice or intimation under
this Chapter containing any particular which he knows to be false or does not believe to
be true, or containing particulars which he knows to be incomplete or does not believe to
be complete, shall be punishable with imprisonment which may extend to three months, or
with fine, or with both.
71. Power to make rules:
(1) The Provincial Government may make rules prescribing the fees
which shall accompany documents sent to the Registrar of Firms, or which shall be payable
for the inspection of documents in the custody of the Registrar of Firms, or for copies
from the Register of Firms:
Provided that such fees shall not exceed the maximum fees specified in Schedule
CHAPTER - VIII
Supplemental
72. Mode of giving public notice:
A public notice under this Act is given --
(a) where it relates to the retirement or expulsion of a partner from a registered firm,
or to the dissolution of a registered firm, or to the election to become or not to become
a partner in a registered firm by a person attaining majority who was admitted as a minor
to the benefits of partnership, by notice to the Registrar of Firms under section 63, and
by publication in the official Gazette and in at least one vernacular
newspaper circulating in the district where the firm to which it relates has its place or
principal place of business, and
(b) in any other case, by publication in the official Gazette and in
at least one vernacular newspaper circulating in the district where the firm to which it
relates has its place or principal place of business.
Comments
Public Notice.- Sub-Sec. (a) prescribes the cases in which a public notice should
be given in the manner stated therein. In case a retiring partner desiring to terminate
further liability [Sec. 32(3)(4)], or an expelled partner desiring to terminate further
liability [sec. 33(2)] or partners of a dissolved firm desiring to terminate further
liability (sec. 45)-or a minor admitted to benefits of partnership electing to become or
not to become partner [Sec. 30(5)], public notice should be given as stated in sub-sec.
(a). Reading the provisions of the said section, the requirement of a public notice
becomes necessary or mandatory. S. 72. Prescribes that public notice has to be given by
intimation to Registrar of firms and by publication in official Gazette and at least in
one vernacular newspaper circulating in the district, where the firm has its place of
business. So, if there is mere publication of notice in one daily, it would not satisfy
the requirements of S.72 of the Act. (C. Assiamma V State Bank of Mysore AIR 1990 Ker.
160).
73. [Repeals.]
Rep. by the Repealing Act, 1938 (I of 1938, S. 2 and Schedule.
74. Nothing in this Act or any repeal effected thereby shall affect
or be deemed to affect -
(a) any right, title, interest, obligation or liability already acquired, accrued or
incurred before the commencement of this Act, or
(b) any legal proceeding or remedy in respect of any such right, title, interest,
obligation or liability, or anything done or suffered before the commencement of this Act,
or
(c) anything done or suffered before the commencement of this Act, or
(d) any enactment relating to partnership not expressly repealed by this Act, or
(e) any rule of insolvency relating to partnership, or
(f) any rule of law not inconsistent with this Act.
SCHEDULE
Maximum Fees
[See sub-sec. (1) of Sec. 71]
Document or act in respect of which the fee is payable |
Maximum Fees |
1 |
2 |
| Rs. | |
| Statement under Section 58 | 50 |
| Statement under Section 60 | 20 |
| Intimation under Section 61 | 20 |
| Intimation under Section 62 | 20 |
| Notice under Section 63 | 20 |
| Application under Section 64 | 20 |
| Inspection of the Register of Firms under | 5 |
| sub-section (1) of Section 66 | |
| Inspection of documents relating to a firm | 5 |
| under sub-section (2) of Section 66 or any | |
| other document in the custody of the | |
| Registrar of Firms | |
| Copies from the Register of Firms | Rs. 2 for each 100 words or part thereof." |
APPENDIX I
SPECIMEN FORM OF A PARTNERSHIP DEED
THIS AGREEMENT made at Karachi this 1st date of July, 1990, between AB, Muslim, adult,
residing at Karachi of the one part AND, CD, Muslim, adult, residing at Karachi, of the
other part.
WHEREAS the party of the One Part and the party of the Other Part have agreed to enter
into a partnership business upon the terms and conditions herein contained;
NOW THEREFORE THESE PRESENTS WITNESS.-And it is hereby agreed between the parties
hereto as follows:
1. This Deed of Partnership shall come into force with effect from the first day of April,
1990.
2. The partnership business shall consist of sale, purchase and manufacture of dyes and
chemicals, and all kinds of agency business, whether manufacturing or otherwise, and/or
such other business as may be decided by the partners from time to time.
3. The partnership shall be carried on in the name and style of "AB & Sons".
4. The partnership shall be a partnership at will.
5. The partnership business shall be conducted at Karachi and/or at such other place or
places as shall be agreed to. by the partners from time to time.
6. Both the partners shall initially invest Rs. 10,000 each and the amounts so invested by
the partners shall form tile capital of the partnership, and the same shall be used as per
these present in the partnership business.
7. Further capital, if any, required by the partnership shall be obtained from time to
time by the partnership by way of loans hundies or otherwise from third parties on payment
of interest at the market rate, and such interest shall be paid out of the partnership
funds irrespective of profits and losses of the said business.
8. The net profits of the partnership business shall, after meeting all the necessary
costs, charges and expenses incurred in carrying on the said partnership business, be
divided in the following proportion:
(a) AB..................50P. in the rupee.
(b) CD..................50P. in the rupee.
any they shall in the like proportion bear all losses, including loss of capital.
9. The profits and losses of the partnership shall be determined as on the 30th day of
June each year, and the same shall be distributed to, or recovered from, the partners
concerned in the proportion aforesaid.
10. It is hereby agreed that each of the partners shall be entitled to draw Rs. 1,000
(Rupees one thousand only) per month for his personal expenses without the consent of the
other partner, and such drawing shall be debited to his personal account, and the sum so
drawn shall be in part or full satisfaction, as the case may be, of the share of the said
partner in the profits of the said partnership business for that year. PROVIDED ALWAYS
that if in any year, the sum drawn as aforesaid by the partner shall exceed the amount of
his share of the net profits for that year, the said partner shall refund the excess to
the partnership as soon as the same shall be ascertained or from his share of the profits
of the subsequent year or years.
11. The partners shall open one or more current accounts with any Bank or Banks in the
name of the partnership, and the account or accounts so opened shall be operated by either
partner.
12. Both the partners shall have full power and authority to draw cheques, withdraw cash
through signed cheques, overdraw from Bank or Banks, take loans, secure credits, sign
bills of exchange and any other legal instrument or instruments, endorse hundies, appoint
attorney or attorneys for and to commence, continue, defend, compound or settle any suit,
prosecution or any legal proceeding for or against the partnership, PROVIDED ALWAYS
that in each such case, the approval or ratification of the other partner shall invariably
be obtained.
13. All partnership money, bills, notes, cheques and other securities received by the
partnership shall, as and when received, be paid and deposited in the Bank or Banks to the
credit of the firm's account, except such sums as are immediately required to meet the
current expenses.
14. The accounts of the said partnership shall be properly maintained and kept at the
office of the partnership, and shall be made up and prepared at the close of each year
ending on the 30th day of June and the Same shall be signed by both the partners.
15. None of the partners hereto shall pledge the credit of the said business of the
partnership, except in the usual and regular course of business, or give credit to or
conduct any business for any other firm, company or person.
16. The money constituting the net profits made on such yearly account as aforesaid, after
deducting all the expenses, salaries, wages, taxes, etc., may be withdrawn by each partner
respectively entitled thereto according to his respective share as herein before provided
(less such sums as may have been previously drawn on account by such partner).
17. In the event of any partner desiring to retire, for any reason whatsoever, from the
said partnership, he shall give a previous notice of three months to that effect. On such
notice being received by the firm, the account books of the firm shall be brought
up-to-date and a balance-sheet as at the end of the period of the said notice shall be
made up. The outgoing partner shall be paid his share of the net profits as on the date of
retirement and shall be required to pay all his dues or debts, if any, to the firm, and
after all the claims and dues of and/or against the firm are satisfied, he shall be deemed
to be free from the partnership, and the other partners shall be deemed to be free from
the partnership, and the other partners shall be entitled to continue the business of the
partnership as the sole proprietor thereof. The partner thus going out shall be entitled
to the rights of the goodwill of the firm to the extent of his share in the partnership.
18. In the event of death of either of the partners occurring during the currency of the
said partnership, the surviving partner shall be entitled to continue and carry on the
said business in partnership with the legal heirs, successors or legal representative of
the deceased partner, and if such heirs, successors or legal representatives of the
deceased partner decide not to carry on the said business in partnership, then the
surviving partner may carry on the said business as the sole proprietor thereof in the
same name and style, after working out and paying the dues and claims of the deceased
partner to his heirs, successors or legal representatives, as the case may be, who shall
have full power to inspect accounts and obtain such information as may be necessary for
ascertaining that the share of the deceased has been properly worked out and paid. The
share of the deceased shall include his share in the goodwill of the firm.
19. Any dispute or question which may arise in the business of the said partnership in
connection with any matter between the partners or the surviving partner and the heirs,
successors or legal representatives of the deceased partner, whether during the currency
of this Agreement or after the termination thereof, relating to or arising out of the
business of the partnership or of this Agreement. Such arbitration shall be held at
Karachi, and shall be governed by the provisions of the Arbitration Act for the time being
in force in Pakistan, and the Arbitration Award shall be binding on the parties to the
dispute.
IN WITNESS WHEREOF the parties hereto have hereunto set and subscribed their
respective hands and seals the day and year first herein above written.
SIGNED SEALED AND |
|
DELIVERED by the within named |
(Signature of AB) |
AB, in the presence of .________________ |
|
SIGNED SEALED AND |
|
DELIVERED by the within named |
(Signature of CD) |
CD, in the presence of ___________________ |
APPENDIX II
SPECIMEN FORM OF A DISSOLUTION DEED
THIS DEED made at Karachi this 1st day of March, 1990, between AB of Karachi,
Muslim adult, residing at Karachi of the First Part and CD, Muslim adult, residing at
Karachi of the other part.
WHEREAS the party of the First Part and the party of the Other Part have entered
into a Partnership business in dyes and chemicals under a Deed of Partnership dated the
1st day of January, 1988;
AND WHEREAS the said Partnership was a partnership at will;
AND WHEREAS on account of disputes between the partners, it has been decided by and
between the partners that the said partnership shall be dissolved on the terms and
conditions hereinafter appearing:
NOW THIS DEED WITNESS as follows:
1. The said partnership entered into under the Deed of Partnership dated the 1st day of
January, 1988 is hereby dissolved with effect from the date of this Deed.
2. The party of the First Party hereby agrees and undertakes to notify the dissolution of
the partnership to the Registrar of Firms and also give notice thereof in a local
newspaper, within 21 days from the date of the execution hereof.
3. The assets and liabilities of the partnership, have been assessed and the final
balance-sheet and profit and loss account have been taken to the mutual satisfaction of
both the parties hereto.
4. On the dissolution of the partnership, the assets and liabilities of the firm as per
the balance-sheet aforesaid together with the stocks, securities goodwill, tenancy rights
and all other assets of the firm have been allotted and assigned to the party of the First
Part, who has paid to the party of the Other Part a sum of Rs....... (Rupees........ only,
the receipt whereof the party of the Other part hereby acknowledges) in part-payment of
his share in the net divisible assets of the firm and has given to the party of the Other
Part a Promissory Note for a sum of Rs....... (Rupees ....... only) payable on 1st
December 1990 with interest at 10 per cent annum being the balance of his share in the
assets of the firm.
5. The party of the Other part hereby releases, grants, assigns and conveys ALL his share,
right, title and interest in the said partnership business and properties, including the
goodwill and tenancy rights thereof TO HOLD the same into the party of the First Part
absolutely.
6. The party of the First Part hereby convenants with the party of the Other Part that he
shall discharge all the liabilities and obligation of the partnership and shall
effectively indemnify and continue to indemnify the party of the Other Part against claims
and expenses in respect thereof.
7. The party of the Other Part shall not, for a period of 5 years from the date hereof,
engage himself directly or indirectly in the business of dyes and chemicals within a
radius of 2 miles from the premises of the partnership shop.
8. Unless repugnant to the context or meaning thereof, the expressions "the party of
the First Part" and "the party of the Other Part" shall include their
respective heirs, representatives, successors and assigns.
IN WITNESS WHEREOF the parties hereto have hereunto set and subscribed their
respective hands and seals the day and year first herein above written.
SIGNED SEALED ANDDELIVERED by the within named |
(Signature of AB) |
AB in the presence of: |
|
SIGNED SEALED ANDDELIVERED by the within named |
(Signature of CD) |
CD in the presence of: |
APPENDIX III
THE CONTRACT ACT
(IX OF 1872)
CHAPTER Xl
(Ss. 239- 266)
OF PARTNERSHIP
239. "Partnership defined": "Partnership" is the relation which
subsists between persons who have agreed to combine their property, labour or skill in
some business, and to share the profits thereof between them.
"Firms defined": Persons who have entered into partnership with one
another are called collectively a "firm".
Illustrations.
(a) A and B buy 100 bales of cotton, which they agree to sell for their joint account;
A and B are partners in respect of such cotton.
(b) A and B buy 100 bales of cotton, agreeing to share it between them. A and H are not
partners.
(c) A agrees with B, a goldsmith, to buy and furnish gold to B, to be worked up by him and
sold, and that they shall share in the resulting profit or loss. A and B are partners.
(d) A and B agree to work together as carpenters, but that A shall receive all profits and
shall pay wages to B. A and B are not partners.
(e) A and B are joint owners of a ship. This circumstances does not make them partners.
240. Lender not a partner by advancing money for share of profit: A loan to a
person engaged or about to engage in any trade or undertaking upon a contract with such
person that the lender shall receive interest at a rate varying with the profits or that
he shall receive a share of the profits, does not, of itself, constitute the lender a
partner, or render him responsible as such.
241. Property left in business by retiring partner, or deceased partner's
representative: In the absence of any contract to the contrary, property left by a
retiring partner, or the representative of a deceased partner, to be used in the business
is to be considered a loan within the meaning of the last preceding section.
242. Servant or agent remunerated by share of profits not a partner: No contract
for the remuneration of a servant or agent of any person, engaged in any trade or
undertaking, by a share of the profits of such trade or undertaking shall, or itself,
render such servant or agent responsible as a partner therein, nor give him the rights of
a partner.
243. Widow or child of deceased partner receiving annuity out of profits not a partner:
No person, being a widow or child of a deceased partner of a trader and receiving by
way of annuity a proportion of the profits made by such trader in his business, shall, by
reason only of such receipt, be deemed to be partner of such trader, or be subject to any
liabilities incurred by him.
244. Person receiving portion of profits for sale of goodwill not a partner: No
person receiving, by way of annuity or otherwise, a portion of the profits of any
business, in consideration of the sale by him of the goodwill of such business, shall by
reason only of such receipt, be deemed to be a partner of the person carrying on such
business, or be subject to his liabilities.
245. Responsibility of person leading another to believe him a partner: A person
who has, by words spoken or written or by his conduct, led another to believe that he is a
partner in a particular firm is responsible to him as partner in such firm.
246. Liability of person permitting himself to be represented as a partner: Any one
consenting to allow himself to be represented as a partner is liable, as such, to third
persons who, on the faith thereof, give credit to the partnership.
247. Minor partner not personally liable but his share is: A person who is under
the age of majority according to the law to which he is subject may be admitted to the
benefits of the partnership, but cannot be made personally liable for any obligation of
the firm; but the share of such minor in the property of the firm is liable for the
obligations of the firm.
248. Liability of minor partner on attaining majority: A person who has been
admitted to the benefits of partnership under the age of majority becomes, on attaining
that age, liable for all obligations incurred by the partnership since he was so admitted,
unless he gives public notice within a reasonable time, of his repudiation of the
partnership.
249. Partner's liability for debts of partnership: Every partner is liable for all
debts and obligations incurred while he is a partner in the usual course of business by or
on behalf of the partnership; but a person who is admitted as a partner into an existing
firm does not thereby become liable to the creditors of such firm for anything done before
he became a partner.
250. Partner's liability to third person for neglect or fraud of co-partner: Every
partner is liable to make compensation to third persons in respect of loss or damage
arising from the neglect or fraud of any partner in the management of the business of the
firm.
251. Partner's power to bind co-partners: Each partner who does any act necessary
for, or usually done in, carrying on the business of
such a partnership as that of which he is a member binds his co-partners to the same
extent as if he were their agent duly appointed for that purpose.
Exception: If it has been agreed between the partners that any restriction shall be
placed upon the power of any one of them, no act done in contravention of such agreement
shall bind the firm with respect to persons having notice of such agreement.
Illustrations
(a) A and B trade in partnership, A residing in England, and B in Pakistan. A draws a
bill of exchange in the name of the firm. B has no notice of the bill, nor, is he at all
interested in the transaction. The firm is liable on the bill, provided the holder did not
know of the circumstances under which the bill was drawn.
(b) A, being one of a firm of solicitors and attorneys, draws a bill of exchange in the
name of the firm without authority. The other partners are not liable on the bill.
(c) A and B carry on business in partnership as bankers. A sum of money is received by A
on behalf of the firm. A does not inform B of
such receipt, and afterwards A appropriates the money to his own use. The partnership is
liable to make good the money.
(d) A and B are partners. A with the intention of cheating B, goes to a shop and purchases
articles on behalf of the firm, such as might be used in the ordinary course of the
partnership business and converts them to his own separate use, there being no collusion
between him and the seller. The firm is liable for the price of the goods.
252. Annulment of contract defining partners, rights and obligations: Where
partners have by contract regulated and defined, as between themselves, their rights and
obligations, such contract can be annulled or altered only by consent of all of them,
which consent must either be expressed, or be implied from a uniform course of dealing.
Illustrations
A, B and C, intending to enter into partnership, execute written articles of
agreement, by which it is stipulated that the net profits arising from the partnership
business shall be equally divided between them. Afterwards they carry on the partnership
business for many years. A receiving one-half of the net profits and the other half being
divided equally between B and C. All parties know of and acquiesce in this arrangement.
This course of dealing supersedes the provision in the articles as to the division of
profits.
253. Rule determining partners' mutual relations, where no contract to contrary: In
the absence of any contract to the contrary the relations of partners to each other are
determined by the following rules:-
(1) all partners are joint owners of all property originally brought into the partnership
stock, or bought with money belonging to the partnership, or acquired for the purposes of
the partnership business. All such property is called partnership property. The share of
each partner in the partnership property is the value of his original contribution,
increased or diminished by his share of profits or loss;
(2) all partners are entitled to share equally in the profits of the partnership business,
and must contribute equally towards the losses sustained by the partnership;
(3) each partner has a right to take part in the management of the partnership business;
(4) each partner is bound to attend diligently to the business of the partnership, and is
not entitled to any remuneration for acting in such business;
(5) when differences arise as to ordinary matters connected with the partnership business,
the decision shall be according to the opinion of the majority of the partners; but no
change in the nature of the business of the partnership can be made, except with the
consent of all the partners;
(6) no person can introduce a new partner into a firm without the consent of all the
partners;
(7) if from any cause whatsoever any member of a partnership ceases to be so, the
partnership is dissolved as between all the other members;
(8) unless the partnership has been entered into for a fixed term, any partner may retire
from it at any time;
(9) where a partnership has been entered into for a fixed term, no partner can, during
such term, retire except with the consent of all the partners, nor can he be expelled by
his partners for any cause whatever, except by order of Court;
(10) partnerships, whether entered into for a fixed term or not, are dissolved by the
death of any partner.
254. When Court may dissolve partnership: At the suit of a partner the Court may
dissolve the partnership in the following cases:-
(1) when a partner becomes of unsound mind;
(2) when a partner, other than the partner suing, has been adjudicated an insolvent under
any law relating to insolvent debtors;
(3) when a partner, other than the partner suing, has done any act by which the whole
interest of such partner is legally transferred to a third person;
(4) when any partner becomes incapable of performing his part of the partnership contract;
(5) when a partner, other than the partner suing, is guilty of gross misconduct in the
affairs of the partnership or towards his partners;
(6) when the business of the partnership can only be carried on at a loss.
255. Dissolution of partnership by prohibition of business: A partnership is in all
cases dissolved by its business being prohibited by law.
256. Rights and Obligations of partners in partnership continued after expiry of term
for which it was entered into: If a partnership entered into for a fixed term be
continued after such term has expired, the rights and obligations of the partners will, in
the absence of any agreement to the contrary, remain the same as they were at the
expiration of the term, so far as such rights and obligations can be applied to a
partnership dissolvable at the will of any partner.
257. General duties of partners: Partners are bound to carry on the business of the
partnership for the greatest common advantage, to be just and faithful to each other, and
to render true accounts and full information of all things affecting the partnership to
any partner or his legal representatives.
258. Account to firm of benefit derived from transaction affecting partnership: A
partner must account to the firm for any benefit derived from a transaction affecting the
partnership.
Illustrations
(a) A, B and C are partners in trade. C, without the knowledge of A and B, obtains for
his own sole benefit a lease of the house in which the partnership business is carried on.
A and B are entitled to participate if they please, in the benefit of the lease.
(b) A, B and C carrying on business together in partnership as merchants trading between
Bombay and London D, a merchant in London, to whom they make their consignments, secretly
allows C a share of the commission which he receives upon such consignments, in
consideration of C's using his influence to obtain the consignments for him. C is liable
to account to the firm for the money so received by him.
259. Obligations, to firm, of partner carrying on competing business: If a partner,
without the knowledge and consent of the other partners carries on any business competing
or interfering with that of the firm, he must account to the firm for all profits made in
such business, and must make compensation to the firm for any loss occasioned thereby.
260. Revocation of continuing guarantee by change in firm: A continuing guarantee,
given either to a firm or to a third person, in respect of the transactions of a firm, is,
in the absence of agreement to the contrary, revoked as to future transactions by any
change in the constitution of the firm to which, or in respect of the transactions of
which, such guarantee was given.
261. Non-liability of deceased partner's estate for subsequent obligation: The
estate of a partner who has died is not, in the absence of an express agreement, liable in
respect of any obligation incurred by the firm after his death.
262. Payment of partnership debts and of separate debts: Where there are joint
debts due from the partnership, and also separate debts due from any partner, the
partnership property must be applied in the first instance in payment of the debts of the
firm, and, if there is any surplus, then the share of each partner must be applied in
payment of his separate debts or paid to him. The separate property debts, and the surplus
(if any) in the payment of the debts of the firm.
263. Continuance of partners' rights and obligations after dissolution: After a
dissolution of partnership, the rights and obligations of the partners continue in all
things necessary for winding up the business of the partnership.
264. Notice of dissolution: Persons dealing with a firm will not be affected by a
dissolution of which no public notice has been given, unless they themselves had notice of
such dissolution.
265. Winding up by Court on dissolution or after termination: Where a partner is
entitled to claim a dissolution of partnership, or where a partnership has terminated, the
Court may, in the absence of any contract to the contrary, wind up the business of the
partnership, provide for the payment of its debts and distribute the surplus according to
the shares of the partners respectively.
266. Limited liability partnerships, incorporated partnerships and joint-stock
companies: Extraordinary partnerships, such as partnerships with limited liability,
incorporated partnerships and joint stock companies, shall be regulated by the law for the
time being in force relating thereto.
|
|
|
|
|
|
| Home | About Us | Contact | Information Resources |