Upgrad LLM

maintainability


Whether suit filed only against partnership firm without naming any one as it's partner is maintainable. If suit is decreed n this grounds is not taken in appeal memo can it be raised in arguments

 
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Retired employee.

Youee advocate that handled such a case in the Trial court is most competent to guide in the issue.  The advocate who takes up the appeal in such cases is more competent to decide the relevant issues.   Normally those issues which are not raised during pleadings in trial court can not be raised a fresh in appeal.   The appeal is concerned only with facts/law interpretation in lower court while arriving to judgment.  (The query is incomplete, and the presumption is that the issue may be a cheque bouncing case, where one partner signed with a rubber stamp of the firm.  Those who accept cheques need not know the details of the entire partners, and the relevancy is the transaction is with a firm.  A partner is liable and he can involve or claim a proportionate share from other partners after meeting the firm's obligations)

 
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CEO

Partner/s of the firm have to be made party to the suit.
 
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Advocate

Why if - Is this not a real issue?

 
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Advocate

In Supreme Court of India

Purushottam Umedbhai & Co vs M/S. Manilal And Sons (In ... on 7 October, 1960
 
The  respondent  a firm carrying on  business	in  Singapore
 filed	a plaint in the firm name against the appellants  for
 the  breach  of contract.  The plaint had  been  signed  and
 verified  on  behalf of the firm by one 'D' on	 a  power  of
 attorney executed by one of the partners only.	 After about,
 6  years  the	respondents  made  an  application  for	  the
 amendment  of the plaint.  The amendment sought was  to  the
 effect that the name of the firm as plaintiff be struck off,
 as  it was a misdescripttion and in its place and  stead  the
 names	of  five partners of the firm should  be  brought  on
 record in order to bring the controversy between the  proper
 parties into clear relief.
 The  amendment	 petition was rejected, inter  alia,  on  the
 grounds that the original plaint was no plaint in law and it
 was not a case of misnomer or misdescripttion, nor a case  of
 a  nonexistent	 firm or a non-existent person, but  a	legal
 bar,  as the plaint was a nullity.  The proper	 course	 when
 there	is  such a mistake is not to amend  disregarding  the
 condition  of 0. i r. 10 of the Code of Civil Procedure  but
 to  seek  the Court's permission to withdraw the  suit	 with
 liberty  to file a fresh suit under 0. 23 r. i of the	Civil
 Procedure  Code  on the ground of formal  defect  and	which
 should be done before limitation.
 In  appeal  the High Court came to the conclusion  that  the
 descripttion  of a plaintiff by a firm name in a  case	where
 the  Code  of Civil Procedure does not permit a suit  to  be
 brought  in  the firm name should properly be	considered  a
 case  of  descripttion	of the	individual  partners  of  the
 business  and as such a misdescripttion, which in law can  be
 corrected  and	 should	 not be considered  to	amount	to  a
 descripttion of non-existent person.
 It  also rejected the contention that the power of  attorney
 in favour of D was insufficient.
 983
 Held,	that the word,' firm" or the "firm name " in s. 4  Of
 the   Indian  Partnership  Act	 is  merely   a	  compendious
 descripttion of all the partners collectively.	Where a	 suit
 is filed in the name of a firm it is still a suit by all the
 partners  of  the  firm unless it is  proved  that  all  the
 partners had not authorised the suit.
 The  provision of 0. XXX r. 1 & 2 of the Code of Civil	 Pro-
 cedure	 are enabling provisions to permit several firms  who
 are doing business as partners to sue or be sued in the name
 of  the firm and do not prevent the partners of a firm	 from
 suing	or being sued in their individual names, nor do	 they
 prohibit  the	partners of a firm suing in  India  in	their
 names	individually  although	they may  be  doing  business
 outside  India;  since	 a firm is not	a  legal  entity  the
 privilege of suing in the name of a firm is permissible only
 to  those  persons, who as partners are  doing	 business  in
 India.	  Such privilege is not extended to persons  who  are
 doing	business  as partners outside India.  In  their	 case
 they  still  have  to sue in  their  individual  names.   If
 however, under some misapprehension, persons doing  business
 as  partners outside India do file a plaint in the  name  of
 their	firm they are misdescribing themselves, as  the	 suit
 instituted  is by them, they being known collectively	as  a
 firm.

From the above judgment it can be seen that the partnership firm can be sued without impleading the partners.

 

 
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Lawyer

Being a fictitious legal entity a partnership firm has to be sued and represented by an authorised person, who may or may not be a partner.

 

 
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Lawyer

In case partner is not impleaded in Trail Court (which has stated to have decreed the suit against partnership firm) by ommission or commission, may be permitted to be impleaded in appeal by the Appellate Court..

 
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