25% OFF on all LCI Courses. Offer valid till 5th Oct. Use Code: DUS25
LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

viplav (abc)     27 October 2010

cheque return case by unregistered firm????

Dear friends, i have a problem that i am a partner in an unregistered firm, and one of my client's cheque is dishonered and i have filed a suit against him, but now i have a quarry that can an unregistered firm can file a suit ????

can my client's lawer raise this quarry ?????

help me!!!



Learning

 5 Replies

AEJAZ AHMED (Legal Consultant/Lawyer)     27 October 2010

 

Dear Viplav,

 

From your query it is not clear, who is the “Holder of Cheque”, either you personally or on the name of Firm.

 

A juristic person or corporeal person, cannot speak itself, but is to be represented, by a duly authorized person. In that case, the cheque, was in favour of the company (juristic person), which was

dishonoured.

 

It is cited in : M/S Surindera Steel Rolling vs Sh. Sanjiv Kumar S/O Sh. Baij Nath on page 4 of the Judgment attached in rar file, as :

 

In M/s Capital Leasing and Finance Company's case (supra), it was held that the provisions of Section 69(2) of the Partnership Act, 1932, are not applicable to a complaint, filed by an un-registered firm. In that case, a criminal complaint, under Section 138 of the Act, was filed, by an unregistered firm through one of its partners, who was duly authorized. In these circumstances, it was held that he was a competent person.

 

It is observed in : Asit Dutta vs The State Of West Bengal & Anr. on page 2 of the Judgment attached in rar file, as :

 

“Though reference was made to learned Single Bench decision of the Gujarat High Court in the case between Saraswati Trading Company Vs. State of Gujarat & Anr., as reported in 2007 CRI. L. J. 895, I find it difficult to find any justification for such reference. In the present case, a cheque under reference was issued in the name of the firm and even assuming it to be unregistered, there could be no reason as to why one of the partners could not have initiated the case under Section 138 of the N.I. Act and that too, after being equipped with an 'authorization'”.

 

Please find attached the above judgments in your favour including some other judgment against your case. 


Attached File : 8 8 ur registered firm 138.rar downloaded: 309 times
1 Like

viplav (abc)     27 October 2010

sir, the cheque on the firm name, and sir your file is not downloading please upload again, and thank you very  very very much,

DEEPAK ASSOCIATES (08010117611)     28 October 2010

A Case u/s 138 of NIACt  did not bar the Unregistered firm through its partner to institute the case. One of the partner who have been given authority on their behalf can institute the case and can take all steps in the proceeding. Liabities must be exist and it should be legal debt. The account of your firm exist and the signatories are partner, they are signing the cheque etc in the capacity of partner, therefore unregistration did not bar to file any type of case/suit.

The authorties cited by Mr AEJAZ AHMED are good

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     06 August 2011

yes I am agree with Mr. Aejaz Ahamd and in the case of DABASHREE DAS BAISHANAB V/S FI MULTIMEDIA CONSULTANT  the Gauhati High court held that

Complaint by unregistered partenership firm is maintainable.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     15 August 2011

The bar for filing the cases by unregistered firms is for civil matters only and not for criminal case such as NI 138, but still you have to prove lot of things for get convication. Mere right to file a case does not solve the problem.


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  


Start a New Discussion Unreplied Threads



Popular Discussion


view more »




Post a Suggestion for LCI Team
Post a Legal Query