Civil Procedure Code (CPC)

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Madhu Mittal (Director)     18 July 2021

Whether  non signatory- active ( nowretired)  partner   and 

Whether  non signatory- active ( nowretired)  partner   and  signatory partner  liable u 138 after dissolution of firm

Mr A and B are two brothers having wife  Mrs. X and Mrs. Y respectively.  They have two partnership Firms.

 One  “A & co” having  partners  Mr. A and Mrs. Y. Another one is “B and co” having partner  Mr. B and  Mrs. X.

Both Firms took  loans from a number of persons. Many of them filed cases against them also some cases u/s 138 N I Act , some for recovery of money suit under Order 37 CPC, some  Regular Recovery Suits after the death of Mr. A on 30.07.2019.

Specific case:

Both  Firms took loan from  a lender of Rs. On  lac each at different time  through Cheque,  and on the basis of  post dated cheque of Firm signed by Mr. A  for “A & co.”  and by Mr B for “B & co.  for each loan .

 

post dated cheques were dishonored in July 2021 reason being due

to stoppage of account operation due to death signatory/ partner.

Interest cheques were also given from time to time from the account of firm “A & co” signed by Mr. A from time to time after deducting TDS from interest amount till May 2019.

Interest cheques were also given from time to time from the account of firm “B & co” signed by Mr. B from time to time after deducting TDS from interest amount till May 2019.

Now Development :

Development in the case is that on 30.07.2019, Mr. A expired.

About on 28.09.2029, A  paper  publication is given by which Mrs. Y retired from the Partnership of “A and co”  on the basis of  “Partnership reconstituted Deed dated 03.07.219” in which  Mrs. Y retired on 03.07.2019 and Mr. B is inducted as new partner on 03.07.2019 notarized as S. no. 500A at Norary Register.

About on 28.09.2029, another  paper  publication is given by which Mrs. X  retired from the Partnership of “B &  co”  on the basis of  “Partnership reconstituted Deed dated 03.07.219” in which  Mrs. X retired on 03.07.2019 and Mr. A  is inducted as new partner on 03.07.2019 duly notarized as S. no. 500 B at Same Norary Register.

Mr. A expired on 30.07.2019.After his death,  business ‘shop is almost closed, Partners do not want to meet Lenders and actually no sufficient fund in bank account.

Now

Thus in my view above both Partnership Dissolved on 30.07.2019 (because there were only two partner before death of Mr. A , if “Partnership reconstituted Deed dated 03.07.219” taken to be true or otherwise also)

  1. Now cheque given in reimbursement of loan at the time of taking loan,  presented and returned unpaid, whether in  “ A & co”,  Mrs.Y will be held liable  or not u/s 138 N I Act.  
  2. Now cheque given in reimbursement of loan at the time of taking loan,  whether in  “ A & co”,  Mr. B will be held liable  or not u/s 138 N I Act as debt was taken before his entering  in partnership.

 

  1. Now cheque given in reimbursement of loan at the time of taking loan,  presented and returned unpaid, whether in  “ B & co”,  Mrs.X will be held liable  or not u/s 138 N I Act.

 

  1. As per Notary Act, every document should be numbered serial. So it appears prima facie that “Partnership reconstituted Deed dated 03.07.219” was made after death of Mr. A and to absolve two ladies of family from the clutches of law. Can it be challenged  on this ground,

3(a) if Partners  can not prove it “genuine” can a case under IPC be filed,or  3(b) it should be disproved by lender for getting them punished in a case under IPC.

 

  1. Can section 420 IPC  alonghwith Section 138 N I Act be added as Firms has taken loan from a lot of persons, and not paying them after the death of Mr. A on 30.07.2019, as record was  got from the official sight of Court?

Inspite of same query at below thread, I am repeating here as some learned persons, yet to be recognized as Expert.  https://www.lawyersclubindia.com/experts/whether-non-signatory-active-nowretired-partner-and-sign-734436.asp



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