In absence of third partner


Dear all experts,

The Partnership firm of three partners established in 2006, (partnership at will) and registered to registrar of partnership firm immediately. We took a term loan from a Nationalized Bank in 2006. Further in 2010 we decided to sell the property of the firm (originally brought by me) because of losses incurred to us. we (all three partner) signed the consent letter for  the bank on 02/07/2010 and  also signed a  separate dissolving deed with the details  like total outstanding of the company, outstanding dues of all vendors ,employees and others including bank, further distribution of Loss and Profit distribution of capital investment, takeover condition etc.  Further on 00/09/2010, we submitted said consent letter to bank. On 27/09/2010 buyers of the property pays a agreed amount to the bank through  RTGS on company account, and in the same time the third partner does not turn-up, Hence forth the Bank Manager  tells us that third partner cancel the said consent letter verbally?

We cannot complete the deal because of the absence of the third partner , we returned the total money to buyer immediately.  We put civil suit against third partner asking permission to sale the property of firm. The same suit and appeal u/s 9 of arbitration act is still pending?   

Questions rise as follows  

1)      Dos one partner cancels his consent given on combined letter to bank to liquidate loan without consulting other Two Partner?

2)      Dos dissolvations of farm subsequently dissolve the Partnership deed?

3)      When dissolvations letter / contract have all the above mentioned details ,dos there is need of arbitration? (the partnership deed is having arbitration clause)

4)      We two partners are still repaying the EMI of the bank, how we are able to recover our loss from third partner? ( total three property under liability of bank ,one company office ,second is of my wife as a guarantor and third of third partner)

Raj  

 
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Jadhav & Associates

Please take help of someone.

The partner can change is mind of giving consent but it cannot be done orally and hence you could ask the bank for the proof or a written document where the consent has been cancelled.

If the remaining partners can carry out the transaction on their own (if they are given the power in the partnership deed) then they can complete the transaction. The best way would have been to take power of attorney of the partners while also mentioning that the PoA is given but the rights of the partners are still with the partners.

S Jadhav

 
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We  two partners given notice to third partner to give the consent to appoint arbitrator? Request rejected by partner? Put apple u/s 9 of arbitration act, Hc Rejected the apple saying Bank is not been made party? How bank will become a party?

 
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We  two partners given notice to third partner to give the consent to appoint arbitrator? Request rejected by partner? Put apple u/s 9 of arbitration act, Hc Rejected the apple saying Bank is not been made party? How bank will become a party?

 
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Jadhav & Associates

Please provide a copy of the HC order to understand what happened.

S Jadhav

 
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Please follow the thread for more detail

Phttp://www.lawyersclubindia.com/forum/Undue-illegal-recall-notice-under-section-13-2-of-sarfaes-56165.asp   

Raj

 
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Please follow the thread for more detail

Home > Business Law > Banking > undue /illegal recall  notice under section 13(2) of Sarfaes .

Raj

 
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The Latest Up Dates

 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

ARBITRATION PETITION NO. xxx OF 2011

1.... Petitioners

Vs

... Respondent

Mr. xyz.

None for the Respondent.

CORAM :  J.

Date:-

P.C.:

1. The petition is heard finally. This petition, under section 9 of

the Arbitration & Conciliation Act, 1996, is unsustainable.

2. The parties carry on business as partners of the firm. The

petitioners seek permission to sell the property which has been

mortgaged to (Bank) albeit to pay the dues of (Bank). The (Bank) is not

a party to the arbitration proceedings. The (Bank) is not even a party to this petition. The (Bank) has not even been given notice.

3. The petition is rejected.

* We Appeal ARBITRATION PETITION NO.XXX OF 2011 and the following judgment is given

APPEAL NO.XXX OF 2012

> 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY.

ORDINARY ORIGINAL CIVIL JURISDICTION

APPEAL NO.XXX OF 2012

IN

ARBITRATION PETITION NO.XXX OF 2011

Mr. and Mr. ...Appellants

v/s.

Mr. ...Respondent

Mr.xxxx for Appellants.

Mr.vvvv  i/b Mr.rrrrr for Respondent.

...

CORAM: C.J. & J.

DATE : -------

P.C.

 

Leave to add (Bank) as party respondent. Amendment shall be carried out forthwith.

 

2. Having heard the learned counsel for the parties, we find

that the interests of justice would be served, if this appeal is disposed of

in following terms:

The appeal is allowed and the matter is remanded back to

the learned single Judge, after joining (Bank) as party respondent in the arbitration petition.

 

3. We are inclined to take this view, because the learned

counsel for the appellants submits that the appellants, who are two

partners of the firm , have not challenged the claim of the bank for

recovery of the dues of the firm and in that sense the bank would be

proforma respondent. In fact, the bank would be in a position to recover

its dues from the firm from the properties of the firm and therefore, the

bank need not go against the personal properties of the appellants.

 

4. In view of the above, we set aside the impugned order of

the learned single Judge dated XX-XX-2011 and remand the matter

back to the learned single Judge, after permitting the appellants to join

(Bank) as party-respondent in the arbitration petition.

                                                                                                                 

5. It is made clear that we have not gone into merits of the

controversy between the parties, which is the subject matter of the

arbitration petition. Subject to above directions, appeal is disposed of.

 

CHIEF JUSTICE

 

Now the question is why and how does the bank will become the second responding party? What will be the Bank Stand in this matter?

Note that 13(2) of Sarfaes is issued on 19/03/2012 / 60day period is over / no action u/s 13(4) or u/s. 14 of Sarfaes  have been taken by Bank.

Raj

 
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Latest Updates

As I mention before arbitration petition is revised by adding Bank as party respondent in the arbitration petition. Bank Remain Silent? Arbitrator is appointed. Bank is not issued 13(4) till the Date.

 
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Latest Updates

As I mention before arbitration petition is revised by adding Bank as party respondent in the arbitration petition. Bank Remain Silent? Arbitrator is appointed. Bank is not issued 13(4) till the Date.

 
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