138 ni act
K R Ranjan
(Querist) 23 February 2015
This query is : Resolved
Sir,
a case u/s-138 has been initiated against two partners of a partnership firm (located in Nagpur, Maharashtra)in gaziabad court in 2012 , since then complainent has not submitted the evidence which can prove his bonafide.
Being one of the partner i have been granted the bail and out of two partner only i was allow to represent in the case.
Since then two Judges have got changed and in last hearing when my counsel has represented for the dismissal of case , then only opponent counsel raised the question for bail of other partner .
In this situation myself alongwith my counsel pleaded for the transfer of case to Nagpur as per latest judgement of SC (cheque getting dishonoured at Nagpur), but judje is not ready to address the same.
It is resulting only harassment and waste of money.
Hence kindly advice your opinion on the issue.
SAINATH DEVALLA
(Expert) 23 February 2015
Dear Rajan,
What kind of a firm is yours? Is it a registered firm?Has the cheque been issued individually or on behalf of the company? If it is on behalf of company all the partners are liable equally. U have mentioned that only U have been granted bail.What about the other partners? Are they evading NBW? One thing is certain that unless the others are brought to the court,the proceedings cannot start.The court cannot proceed only against U .The case must have been filed against the firm(represented by all of U).Transfer of the case in the present situation is not possible.
K R Ranjan
(Querist) 23 February 2015
Sir,
Thanks for your reply ,ours is a unregistered partnership firm.Liability is of firm and we both the partners have issued the cheque of sub as security cheque , for getting distributorship of complainant company.
In begaining Court has allowed me to represent the firm , hence only i was asked to take the bail.
My other partner heve not been issued any NBW so far.
SAINATH DEVALLA
(Expert) 23 February 2015
But why was he excluded from the liability? Still U R not clear in your expression of the case
Guest
(Expert) 23 February 2015
Transfer of case depends upon merit of the case, not on the basis of judgment in some one else's case.
SAINATH DEVALLA
(Expert) 24 February 2015
When both of U have issued the cheque, why did the complainant proceed only against U?Why was UR other partner excluded by the court? Something vital is missing in UR query
K R Ranjan
(Querist) 24 February 2015
sir, In the starting based on our(partners) mutual consent, i pleaded to court to allow me alone to represent the firm , and same was ok to court as well .
All though summon was issued to both of us , but at the time of appearance , only i was asked to take the bail and thus the case proceeded.
Rajendra K Goyal
(Expert) 24 February 2015
As a partner you are responsible for the acts of the firm individually and along with other partner. If the lower court is not accepting prayer for transferring the case as per SC ruling, go for appeal.
Guest
(Expert) 24 February 2015
Mr. Ranjan,
Still some missing link seems to be there in your piece by piece description. For example, you have not quoted on what ground the court has rejected your plea for transfer of case to Nagpur as per latest judgement of SC. Moreover, while you have asked for advice/opinion on the issue, but you have not mention on what specific point, whether on transfer of the case, bail of other partners or some what else.
K R Ranjan
(Querist) 24 February 2015
Even my counsel has not pleaded in writing for the transfer of case , while during verbal argue , Judje refuse to transfer.Now we have decided to submitt a written application giving sitation of SC judjement.
I am seeking opinion in the same issue , that as this litigation is going since last 3 yr without any development , and in that manner i am suppose to appear on regular basis which is quite tiresome.
Hence what measure should i take for earliest disposition of this case.
Guest
(Expert) 24 February 2015
Measures taken by you would have no impact if your own lawyer is ineffective. When your lawyer has not brought on record the SC judgment, how he or you can expect the judge to give you any relief? Better get prmission of the judge to place on record the SC judghment. Moreover, how can you expect the present judge to transfer the case at his own to another court without the order of the HC?
SAINATH DEVALLA
(Expert) 24 February 2015
Rajan,
First mistake committed by U and UR lawyer is making UR other partner go scotfree.The complainant must have originally issued a legal notice for the dishonour of the cheque,either to the firm or to both of U.If the case is filed either on the firm or on both of U,no Judge will ask the other partner to stay at home,while U R being subjected to all the legal procedures.Even if U have requested to be tried alone it is against the procedures of the lower court The only remedy for U is to approach the High Court for quashing the proceedings,which can be done only by a good & intellegent lawyer
