Indian Partnership Act 1932 Definition Sec 4 – “Partnership is the relation between persons who...
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Transcript of Indian Partnership Act 1932 Definition Sec 4 – “Partnership is the relation between persons who...
Indian Partnership Act Indian Partnership Act 19321932
DefinitionDefinitionSec 4 – “Partnership is the
relation between persons who have agreed to share the profits of business carried on by all or any of them acting for all.
Contd-Contd-Persons who have entered into
partnership with one another are called individually “partners” and collectively a “firm” and the name under which their business is carried on is called the firm’s name.
EssentialsEssentialsThere must be a contractBetween two or more personsWho agree to carry on a businessWith the object of sharing profitsThe business must be carried on
by all or any of them acting for all (i.e., there must be mutual agency)
Duration of PartnershipDuration of PartnershipPartnership at will – No provision
regarding duration of partnershipParticular partnership –
Partnership formed for a specific venture
An essential characterAn essential characterIn case of partnership, no
separate legal entity is created. A partnership is merely an
extension of mutual understanding {Association of individuals}
Modification – Taxation –firm separate entity for taxation purposes
Test of PartnershipTest of Partnership1. If there is an express contract
– The real relation is ascertained from the terms of the partnership contract.
2. If there is no express contract – The real relation is ascertained from all the relevant factors such as contract of parties, books of accounts, statements of employees etc
Kinds of PartnersKinds of PartnersActual or active partnersSleeping or dormant partnersSilent partnerPartner in profit onlySub partnerPartner by estoppel or holding
out
Minor as a partnerMinor as a partnerCannot be a full fledged partner –
Since a minor is incapable of entering into a contract, an agreement by or with a minor is void ab intio. Since partnership is formed by agreement a minor cannot enter into partnership agreement.
Contd-Contd-But with the consent of all the
partners can be admitted to the benefits of partnership◦Partnership must be in existence
before a minor can be admitted to the benefits
◦There cannot be a partnership consisting of all minors
◦If a minor is made a full fledged partner under the terms of the partnership deed the deed would be invalid
Rights of a minor admitted to the benefits of Rights of a minor admitted to the benefits of partnershippartnership
Entitled to receive his agreed share of the property and of the profits of the firm
Not entitled to take part in conducting the business of the firm
liabilities of a minor admitted liabilities of a minor admitted to the benefits of partnershipto the benefits of partnershipHe is liable only to the extent of
his share in the profits and property of the firm
Not personally liable to third parties for the debts of the firm
He cannot be declared insolvent.
Contd -Contd -On attaining majority, the minor
must decide within six months whether he would or would not like to become a partner in the firm and give public notice of his decision. If he remains silent and fails to give such notice, it will be presumed that he had elected to be a partner of the firm
Contd - Contd - Where the minor chooses not to
become a partner◦His rights and liabilities continue to
be those of a minor up to the date of his giving public notice
◦He is entitled to sue the partners for his share of the property and profits in the firm
Rights of partners Rights of partners Rt to take part in the conduct of
the businessRt to be consultedRt to Access the books of
accountsRt to Share in the profitsRt to Interest on capital Rt to Interest on advancesRt to indemnity
DutiesDutiesAbsolute duties
◦ Duty to carry on the business to greatest common advantage
◦ Duty to be just and faithful inter se◦ Duty to render true accounts◦ Duty to provide full information◦ Duty to indemnify for loss caused by fraud◦ Duty to be liable jointly and severally◦ Duty not to assign his interest
Contd - Contd - Qualified duties
◦Duty to attend diligently to his duties◦Duty to work without remuneration◦Duty to contribute to the losses◦Duty to indemnify for willful neglect◦Duty to use firm’s property
exclusively for the firm◦Duty to account for personal profits
derived◦Duty not to compete with the
business of the firm
Doctrine of implied authorityDoctrine of implied authorityEvery partner is the agent of the firm for the
purposes of the business of the firm.The authority of a partner means the
capacity of a partner to bind the firm by his act.
This authority may be express or implied.Expressly conferred by an agreement –
express authorityNo partnership agreement or where
agreement is silent – implied authority
Contd - Contd - Flows from the legal relations of the partnersFounded on the principle of agencySubject to following conditions –
◦ Act done by the partner must relate to the normal or usual business of the firm.
◦ Must be done within the scope of the business◦ Act must be done in the name of the firm, or in
any other manner expressing or implying an intention to bind the firm
Contd -Contd -Acts within the implied authority
◦Engaging servants for partnership business
◦Selling the goods of the firm◦Borrowing money on the credit of
the firm◦Settling accounts with persons
dealing with the firm
Contd -Contd -No implied authority
◦Submit a dispute relating to the business of the firm to arbitration
◦Enter into partnership on behalf of the firm
◦Acquire immovable property on behalf of the firm
◦Transfer any immovable property on behalf of the firm
Implied authority and third Implied authority and third partiespartiesExtension and restriction of a
partner’s implied authority (sec 20)– Partner’s in a firm may by contract between them extend or restrict the implied authority of any partner.◦Firm continues to be liable to a third
party for any such act which falls within the scope of the implied authority of the partner
Contd -Contd -Effect of admissions by the
partner (Sec 23) – Any admission made by the partner concerning the affairs of the firm is a sufficient evidence against the firm provided the said admission or representation is made in the ordinary course of business. ◦If admission or representation is
made beyond the scope of the authority the firm will not be bound by it.
Contd - Contd - Effect of notice to acting partner
(sec 24) –Notice to a partner who habitually acts in the course of the business of the firm any matter relating to the affairs of the firm operates as notice to the firm except in case of fraud.
Liability of partner for acts of firm (sec 25) – Every partner is liable for all the acts done while he is a partner
Contd -Contd -Liability of the wrongful acts of the partner –
(sec 26) Firm is liable to the same extent as the partner
Liability of the firm for misapplication (sec 27) – A firm is liable to make good the loss where-◦ (a) a partner acting within the scope of his
apparent authority receives the money or property from a third party and misapplies it:
◦ (b) the firm in the course of its business receives money or property from a third party and the same is misapplied by any of the partners while it is in the custody of the firm
Registration of the firmRegistration of the firmRegistration of firms is not
mandatoryTime – Registration may take place
at any time during the continuance of the partnership firm.
Procedure – An application in the prescribed form along with the prescribed fee has to be submitted to the registrar of firms of the state in which any place of business of the firm is situated.
Effects of non registrationEffects of non registrationNo suit can be filed in a civil
court by firm against third parties.
No suit can be filed a partner against the firm or other copartners.
The firm or the partners cannot make a claim of set-off or other proceedings based upon the contract.
Dissolution of a partnership firmDissolution of a partnership firm
Modes of dissolution of the Modes of dissolution of the firmfirmBy agreementBy noticeOn happening of certain
contingencies◦death of a partner◦Adjudication of the partners as
insolvent Compulsory dissolution
Contd - Contd - Dissolution by court
◦Grounds Insanity of partner Permanent incapacity of partners Misconduct Transfer of interest Persistent breach of agreement Continuous losses
Consequences of dissolutionConsequences of dissolutionContinuing liability of partners after
dissolution(with regard to winding up affairs of the company)
Continuing authority of partners for winding upRight of partners to enforce winding upLiability to share personal profitsReturn of premiumRt where partnership contract is rescinded for
fraudRight to impose restrictions