Under negitiable act 138
sahil
(Querist) 17 May 2013
This query is : Resolved
sir,
i want to know about unregistered partnership firm which is dissolved in July 2005, after dissolution of firm, after dissolution of firm only one partner left and he continued the firm as proprietor of firm and also assign his brother as authorized person of proprietor ship firm, my friend has received a notic from third party that unregistered partnership firm has issued cheque on dated 01-03-2008 in his favor and he deposited to bank on dated 28-03-2008 but as per acknowledgement of bank your firm's account has been closed,
he has been send all retired partners a notic under negotiable act 138,
my friend has not any single document of that partnership firm,
the said case is running and now that is on last stage,
please guide me what will we do for his favor because he not involved in any matter.
awaiting for earliest reply
thanks,
Sahil Kumar
adv. rajeev ( rajoo )
(Expert) 17 May 2013
You have to produce the document given to the bank while closing the account regrading closer of the firm. You have to criss examine the complaint and also it is necessary to lead the evidence of your frnd and partner of the (closed) firm.
R.K Nanda
(Expert) 17 May 2013
no more to add.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 17 May 2013
1) First of all it is 2008 story so whether the case is running from that year if not than it is time barred.
2) In criminal cases you have to demolish the case of the complaint and not to venture in your evidence.
WHAT SUPREME COURT SAYS FOR SUCH EFFORTS.
The court may not insist upon the defendant
to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt.”
3) Drawer of cheque is liable even if liability is not of his own.
4) There is vicarious and constructive liability of other partners since cheque law is criminal law.
5) Still at the last stage you should stall the case before closing defense and explore actions which may be detailed on seeing all the papers.
R.K Nanda
(Expert) 17 May 2013
agree with experts.
Raj Kumar Makkad
(Expert) 17 May 2013
First of all obtain the information from the court about the pendancy of the case and its contents and present status and only thereafter post your further query, if required.
sahil
(Querist) 18 May 2013
dear sir,
my friends ex partners (which is authorized signatory of at that time proprietorship firm) had closed bank account on basis of GPA which is given by proprietor of firm to him , but the third party's lawyer forcefully with evidence of law of partnership act say that notice should be given by retired partners of partnership firm, but at that time due to illiteracy about law and other things me friend and other ex partners have not given any public or any private notic to any body.
his opposite lawyer has put up the case with the negotiable 138 act under issued cheque and also put up the case against his (my friend) and other retired partners for recovery of amount with interest is the liable to make payment, which is ...... ,
one more thing to share with you my friend had kidney transplant in Dec. year 2003 because his both kidney has fail in year 2003, after this he has not come to office 10 months about oct/nov year 2004 and their after his father has suffered with mouth cancer, so in that problem he and his father is not continue coming to office, they visit here and there for cancer problem, all circumstances has not in his favor, he did not know about what is happen in office and last july 2005 his firm is dissolved and his father is expired in 8 Aug 2005. there after he will not go on that side he did not know about what is happen there after,
after seen the documents after dissolution of firm that firm is now proprietorship firm only rest partner continued that firm proprietor has given a (GPA) attorney to his brother in Aug. 2005 (which is already partner in his old firm) and he go to USA and then after he come to India and he in April 2006 give a attorney to third party and also given blank cheque to him without his brother knowledge (which is already GPA holder) of that proprietorship firm. when his brother know about that GPA attorney which is given to third party they revoked that third party attorney in Oct 2006, and there after he goes to again USA still he is not coming to India, he is PO declared by court. in between year Oct 2006 to Feb 2008 have no record show from third party who have case filed but Proprietor's brother has sold the property of firm which is purchased during the partnership firm is running and clear bank account and closed that account and also record a letter to Polic about bank account closed, in 29 March 2008 two cheuqes and present in bank by third party which is already closed and returned and he sent a notic in his address on addressing all partners and Partnership firm name and they send a notic by his advocate back to third party,
so please suggest me what to do, i have shown clear all the tings which are happened
my question is
Is my friend is any risk about cheuqes under 138 act and in civil case of recovery ,Is he is liable to make payment of civil or criminal case,
after kidney transplant he is not stand him self about money, if that criminal or civil case in against on his side
that what happened, can he go for further relaxation or not ,
thanks
sahil kumar
ajay sethi
(Expert) 18 May 2013
civil case is for recovery of money . summary suit must have been filed . in your reply to summons for judgement you must have taklen the plea that firm has been dissolved . produce deed of dissolution of firm and you will be grnated unconditional leave to defend in summary suit . final hearing of suit may take years
Raj Kumar Makkad
(Expert) 19 May 2013
Your friend has a good defence in his hand. The entire facts disclosed by you in the subsequent query are sufficient for your friend to come out of the cases.
