Property under partnership firm
Manik Handa
(Querist) 14 September 2011
This query is : Resolved
Hello All,
We had bought a DSIDC Shed in name of a Partnership Firm to carry out business, this partnership deed dates back to year 1992 and is only notarized but not registered. Now one the partner wants to retire from the partnership firm without any consideration/rights on the immovable property under the firms name. There is a new partner which we need to add in place of the retiring partner. kindly let me know what all need to be done in this case ?
Regards
Devajyoti Barman
(Expert) 15 September 2011
Yes you can do this for which your firm needs to reconstituted.
prabhakar singh
(Expert) 15 September 2011
Retire the old by an accounting of his share capital in cash without mention of shed and induct the new by capital alone here too no mention of shed.
Manik Handa
(Querist) 15 September 2011
Respected All,
Thank you so much for your advice.
I just want to know weather we can register a partnership deed after 10 years of deed execution as the authorities(DSIDC) are asking for registered desolution/retirement deed, for which first i should have to register the old partnership deed ?
kindly advise
prabhakar singh
(Expert) 15 September 2011
YES ,you can register the firm before the registrar of the partnership firms of your area,who shall issue you a registration certificate of partnership firms with name of all partners where after you can go for changes in constitution and getting it recorded before the registrar who shall in corporate the changes and shall issue you a fresh certificate.
BUT YOU SHOULD NOT VISIT THE SUB REGISTRAR OFFICE OF PROPERTIES AS THAT WOULD NOW BE NOT POSSIBLE AND SHALL BE INVITATION TO SEVERAL COMPLICATIONS IN ADDITION.
THE REGISTRATION I AM TALKING ABOUT IS CONTAINED IN CHAPTER VII : REGISTRATION OF FIRMS OF INDIAN PARTNERSHIP ACT, 1932 Where REGISTRARS ARE APPOINTED U/S 57 AND APPLICATION IS MOVED U/S 58 AND REGISTRATION IS RECORDED U/S 59 AND CHANGES ARE RECORDED U/Ss 60 to 63,mistakes are rectified U/S 64,WHICH ALL I AM POSTING INTHE POST TO FOLLOW BELLOW IT.
prabhakar singh
(Expert) 15 September 2011
CHAPTER VII : REGISTRATION OF FIRMS
56. Power to exempt from application of this Chapter
The 3[State Government of any State], may, by notification in the Official Gazette, direct that the provisions of this Chapter shall not apply to 4[that State] or to any part thereof specified in the notification.
57. Appointment of Registrars
(1) The State Government may appoint Registrars of Firms for the purposes of this Act, and may define the areas within which they shall exercise their powers and perform their duties.
(2) Every Registrar shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code (45 of 1860).
58. Application for registration
(1) The registration of a firm may be effected at any time by sending by post or delivering to the Registrar of the area in which any place of business of the firm is situated or proposed to be situated, a statement in the prescribed form and accompanied by the prescribed fee, stating-
(a) the firm name,
(b) the place or principal place of business of the firm,
(c) the names of any other places where the firm carries on business,
(d) the date when each partner joined the firm,
(e) the names in full and permanent addresses of the partners, and
(f) the duration of the firm.
The statement shall be signed by all the partners, or by their agents specially authorised in this behalf.
(2) Each person signing the statement shall also verify it in the manner prescribed.
(3) A firm name shall not contain any of the following words, namely-
Crown, Emperor, Empress, Empire, Imperial, King, Queen, Royal, or words expressing or implying the sanction, approval or patronage of, 5[Government], except 6,[when the State Government] signified 7[its] consent to the use of such words as part of the firm name by order in writing 8[***].
59. Registration
When the Registrar is satisfied that the provisions of section 58 have been duly complied with, he shall record an entry of the statement in a register called the Register of Firms, and shall file the statement 9 .
60. Recording of alterations in firm name and principal place of business
(1) When an alteration is made in the firm name or in the location of the principal place of business of a registered firm, a statement may be sent to the Registrar accompanied by the prescribed fee, specifying the alteration and signed and verified in the manner required under section 58.
(2) When the Registrar is satisfied that the provisions of sub-section (1) have been duly complied with, he shall amend the entry relating to the firm in the Register of Firms is accordance with the statement, and shall file it along with the statement relating to the firm filed under section 59.
61. Noting of closing and opening of branches
When a registered firm discontinued business at any place or begins to carry on business at any place, such place not being its principal place of business, any partner or agent of the firm may send intimation thereof to the Registrar, who shall make a note of such intimation in the entry relating to the firm in the Register of Firms, and shall file the intimation along with the statement relating to the firm filed under section 59.
62. Noting of changes in names and addresses of partners
When any partner in a registered firm alters his name or permanent address, an intimation of the alteration may be sent by any partner or agent of the firm to the Registrar, who shall deal with it in the manner provided in section 61.
63. Recording of changes in and dissolution of a firm
(1) When a change occurs in the constitution of a registered firm any incoming, continuing or outgoing partner, and when a registered firm is dissolved any person who was a partner immediately before the dissolution, or the agent of any such partner or person specially authorised in this behalf, may give notice to the Registrar of such change or dissolution, specifying the date thereof; and the Registrar shall make a record of the notice in the entry relating to the firm in the Register of Firms, and shall file the notice along with the statement relating to the firm filed under section 59.
(2) Recording of withdrawal of a minor-When a minor who has been admitted to the benefits of partnership in a firm attains majority and elects to become or not to become a partner, and the firm is then a registered firm, he, or his agent specially authorised in this behalf, may give notice to the Registrar that he has or has not become a partner, and the Registrar shall deal with the notice in the manner provided in sub-section (1).
64. Rectification of mistakes
(1) The Registrar shall have power at all times to rectify any mistake in order to bring the entry in the Register of Firms relating to any firm into conformity with the documents relating to that firm filed under this Chapter.
(2) On application made by all the parties who have signed any document relating to a firm filed under this Chapter, the Registrar may rectify any mistake in such document or in the record or note thereof made in the Register of Firms.
65. Amendment of Register by order of court
A court deciding any matter relating to a registered firm may direct that the Registrar shall make any amendment in the entry in the Register of Firms relating to such firm which is consequential upon its decision; and the Registrar shall amend the entry accordingly.
66. Inspection of Register and filed documents
(1) The Register of Firms shall be open to inspection by any person on payment of such fee as may be prescribed.
(2) All statements, notices and intimations filed under this Chapter shall be open to inspection, subject to such conditions and on payment of such fee as may be prescribed.
67. Grant of copies
The Registrar shall on application furnish to any person, an payment of such fee as may be prescribed, a copy, certified under his hand, of any entry or portion thereof in the Register of Firms.
68. Rules of evidence
(1) Any statement, intimation or notice recorded or noted in the Register of Firms shall, as against any person by whom or on whose behalf such statement, intimation or notice was signed, be conclusive proof of any fact therein stated.
(2) A certified copy of an entry relating to a firm in the Register of Firms may be produced in proof of the fact of the registration of such firm, and of the contents of any statement, intimation or notice recorded or noted therein.
69. Effect of non-registration
(1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the register of firms as a partner in the firm.
(2) No suit to enforce a right a rising from a contract shall be instituted in any court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the register of firms as partners in the firm.
(3) The provisions of sub-sections (1) and (2) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract, but shall not affect-
(a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm, or
(b) the powers of an official assignee, receiver or court under the Presidency-towns Insolvency Act, 1909 (3 of 1909) or the Provincial Insolvency Act, 1920 (5 of 1920) to realise the property of an insolvent partner.
(4) This section shall not apply-
(a) to firms or to partners in firms which have no place of business in 10[the territories to which this Act extends], or whose places of business in 11[the said territories], are situated in areas to which, by notification under 12[section 56], this Chapter does not apply, or
(b) to any suit or claim of set-off not exceeding one hundred rupees in value which, in the Presidency-towns, is not of a kind specified in section 19 of the Presidency Small Cause Courts Act, 1882 (5 of 1882), or, outside the Presidency-towns, is not of a kind specified in Schedule II to the Provincial Small Cause Courts Act, 1887 (9 of 1887), or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim.
70. Penalty for furnishing false particulars
Any person who signs any statement, amending statement, notice or intimation under this Chapter containing any particular which he knows to be false or does not believe to be true, or containing particulars which he knows to be incomplete or does not believe to be complete, shall be punishable with imprisonment which may extend to three months, or with fine, or with both.
71. Power to make rules
(1) The 3[State Government] 13[may by notification in the Official Gazette make rules] describing the fees which shall accompany documents sent to the Registrar of Firms, or which shall be payable for the inspection of documents in the custody of the Registrar of Firms or for copies from the Register of Firms:
PROVIDED that such fees shall not exceed the maximum fees specified in Schedule I.
(2) The State Government may 14[also] make rules-
(a) prescribing the form of statement submitted under section 58, and of the verification thereof;
(b) requiring statements, intimations and notices under sections 60, 61, 62 and 63 to be in prescribed form, and prescribing the form thereof;
(c) prescribing the form of the Register of Firms, and the mode in which entries relating to firms are to be made therein, and the mode in which such entries are to be amended or notes made therein;
(d) regulating the procedure of the Registrar when disputes arise;
(e) regulating the filing of documents received by the Registrar;
(f) prescribing conditions for the inspection of original documents;
(g) regulating the grant of copies;
(h) regulating the elimination of registers and documents;
(i) providing for the maintenance and form of an index to the Register of Firms; and
(j) generally, to carry out the purposes of this Chapter.
(3) All rules made under this section shall be subject to the condition of previous publication.
15[(4) Every rule made by the State Government under this section shall be laid, as soon as it is made, before the State Legislature.]
YOU ARE ADVISED TO CHECK THE RULES FRAMED IN YOUR STATE.
