Kerala High Court
K.J.Scaria vs The Registrar Of Firms on 16 September, 2021
WP(C) NO. 14332 OF 2021 1
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 16TH DAY OF SEPTEMBER 2021 / 25TH BHADRA, 1943
WP(C) NO. 14332 OF 2021
PETITIONER/S:
K.J.SCARIA,
AGED 65 YEARS
S/O. LATE K.J. KURIAN, MANAGING PARTNER, M/S. FLORAL
DECORATIVES AND NATURALS, INDUSTRIAL ESTATE,
MAYITHARA , CHERTHALA, ALAPPUZHA DISTRICT, NOW
RESIDING AT PRASANTH BHAVAN,, MARUTHORVATTOM P.O.
CHERTHALA 688 539.
BY ADVS.
B.PRAMOD
NAMITHA JYOTHISH
RESPONDENT/S:
THE REGISTRAR OF FIRMS
OFFICE OF INSPECTOR GENERAL REGISTRATION,
THIRUVANANTHAPURAM 695 035.
BY ADV GOVERNMENT PLEADER,SMT. RASHMI K.M.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 16.09.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 14332 OF 2021 2
CR
P.V.KUNHIKRISHNAN, J
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W.P.(C.) No.14332 of 2021
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Dated this the 16th day of September, 2021
JUDGMENT
The petitioner herein is the Managing Director of a
partnership firm by the name "Floral Decorative & Naturals".
The firm was registered in the year 1994 with registration
No.2773/1994. Altogether there were 16 partners in the firm.
On 18.4.1995, the firm was reconstituted by a deed of
retirement dated 18.4.1995 by which 14 partners retired and
the petitioner and M/s.Sofine Decors Pvt.Ltd. continued as
partners. Ext.P1 is the deed of retirement. In fact, out of these
14 partners, who had retired from the firm, by Ext.P1 deed,
only 5 people, namely 1) P.O.Antony 2) Cijo Joseph, 4) Joy
Varghese 5) Varkey John, and 6) Joseph Xavier in Ext.P1 deed
are alive and others are no more.
2. According to the petitioner, after the re-constitution
of the firm, the petitioner had instructed one Mr. P.V.Joseph,
who was one of the directors of M/s.Sophine Decors Pvt.Ltd.,
the other remaining partner to submit a notice under Sec.63(1)
of the Indian Partnership Act, 1932 before the respondent for
effecting necessary changes in the details of the firm
maintained in the respondent's office. The petitioner submitted
that he was under the bonafide impression that the same was
done by Mr.P.V.Joseph. But, the said P.V.Joseph passed away.
It is the case of the petitioner that, later he came to know that
no application had been made by him for effecting changes in
the register in relation to the firm. So the petitioner, on
19.6.2020, submitted a request for effecting the changes in the
constitution of the firm. Ext.P2 is the letter dated 19.6.2020
submitted by the petitioner. It is the case of the petitioner that
he was informed from the office of the respondent that the
format in which the notice was given was not a proper one and
he was instructed to submit the notice in the form prescribed
in Rule 4(1) of the Partnership (Registration of Firms) Rules,
1959 (Kerala) (for short 'the Rules, 1959'). Ext.P3 is the letter.
Accordingly, the petitioner on 8.7.2020 submitted a notice in
the prescribed form (Form No.V) along with a covering letter.
Ext.P4 is the covering letter. Ext. P5 is the copy of the notice
under Sec.63(1) of the Indian Partnership Act r/w Rule 4(1) of
the Rules, 1959. Thereafter, the respondent refused to act
upon Ext.P5 and the same was returned on the ground that
none of the partners have signed the notice. Ext. P6 is the
letter. This writ petition is filed challenging Ext.P6. The
prayers in the writ petition are extracted hereunder :
(i) "Issue a writ of certiorari calling for the original of
Ext.P6 letter and quashing the same;
(ii) Issue a writ of mandamus or any other appropriate writ
order or direction commanding the respondent to consider
Ext.P5 notice and effect necessary changes in the register of
firms qua the partnership firm by name "Floral Decoratives &
Naturals",forthwith.
(iii) Grant such other order as this Hon'ble court deems fit
and necessary in the facts and circumstance of the case."
3. Heard the learned counsel for the petitioner and the
learned Government Pleader.
4. The learned counsel for the petitioner submitted that
the defects noted in Ext.P6 proceedings are unsustainable. The
counsel takes me through Sec. 63 of the Indian Partnership
Act, 1932 and Form No.V appended in Rules, 1959. The
counsel submitted that from a bare reading of Sec.63, it is
clear that when a change occurs in the constitution of a
registered firm, any incoming and continuing or outgoing
partner only need to sign. The counsel also takes me through
Form No.V, in which also, the signature of the incoming or
outgoing partner or his specially authorised agent alone is
mentioned. Therefore, the counsel submitted that the defects
noted in Ext.P6 are unsustainable.
5. The learned Government Pleader takes me through
paragraph No.5 of the statement filed by the respondent and
defended the stand of the respondent.
6. The point to be decided in this case is about the
parties to be signed in a notice submitted under
Sec.63(1) of the Indian Partnership Act. For deciding the
same, it will be better to extract Sec. 63 of the Indian
Partnership Act.
"63. Recording of changes in and dissolution of a firm.- (1)
When 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 in 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 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)."
7. A reading of Sec.63, it is clear that when a change
occurs in the constitution of a registered firm, any incoming
and continuing or outgoing partner may give notice to the
Registrar of such change, 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 in along with the statement relating to the firm filed
under Section 59. So, when a change occurs in the constitution
of a registered firm, the signature of the persons necessary in
the notice to the Registrar are 1) incoming partner 2)
continuing or outgoing partner. I perused Form No.V
appended in Rules, 1959 also. It will be better to extract Form
No.V.
"FORM V
[See Rule 4]
[Filing fee-Rs. 5]
The Indian Partnership Act, 1932
Notice of change in the constitution of the firm or of the dissolution
of the firm.
Presented or forwarded to the Registrar of Firms for filing by: Under
Section 63(1) of the Indian Partnership Act, 1932, notice is hereby
given that,
(1) The Constitution of the Firm*...........................has been altered
as follows:
Name and full address of the incoming Name and full address of the partner
and date of his joining the firm. outgoing partner and date of
his ceasing to be partner.
Station : Signature of the incoming, continuing
Date: or outgoing partner or of his specially
authorised agent.
(2) The firm*..............................has been dissolved with effect from the
Station : Signature of the person who was
Date : partner immediately before dissolution
or of his specially authorised agent."
8. In Form No.V also, it is stated that the signature of
the incoming, continuing or outgoing partner or his specially
authorised agent alone is necessary. Therefore, it is clear that
the signature of an incoming, continuing or outgoing partner
or his specially authorised agent is sufficient.
9. Admittedly, in this case, the petitioner and another
company are the continuing partners. There is no incoming
partner. The petitioner signed on his behalf and he again
signed on behalf of the other partner also. In such
circumstances, according to me, the defects noted in Ext.P6
will not stand. The defects noted in Ext.P6 are extracted
hereunder :
"* അപപേക്ഷയയിൽ partners ആരരും തനന sign നചെയയിടയില്ല എനന്ന് കകാണുന.
* incoming members, outgoing members, continuing members
ഇവരനടെ പപേരയിപനകാനടെകാപരും തനന sign നചെയന്ന് അപപേക്ഷ സമർപയിക്കുക."
10. According to me, in the light of Sec.63 of the Indian
Partnership Act r/w Form No.V of Rules, 1959, the above
defects are unsustainable. Therefore, Ext.P6 is to be quashed
and the respondent can be directed to reconsider Ext.P5
notice, ignoring Ext.P6.
Therefore, this writ petition is allowed in the following
manner :
1) The defects noted in Ext P6 are set aside.
2) The respondent is directed to consider Ext.P5
notice, and take appropriate steps, in accordance to
law, within two weeks from the date of receipt of a copy
of this judgment, ignoring Ext.P6 letter.
SD/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
APPENDIX OF WP(C) 14332/2021
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE RETIREMENT DEED DATED
18.04.1996.
Exhibit P2 A TRUE COPY OF THE REQUEST DATED 1906.2020
SUBMITTED BY THE PETITIONER.
Exhibit P3 A TRUE COPY OF THE LETTER DATED 22.06.2020
ISSUED BY THE RESPONDENT.
Exhibit P4 A TRUE COPY OF THE COVERING LETTER DATED
08.07.2020 SENT BY THE PETITIONER.
Exhibit P5 A TRUE COPY OF THE NOTICE U/S. 63(1) OF
THE INDIAN PARTNERSHIP ACT R/W RULES 4(1)
OF THE RULES.
Exhibit P6 A TRUE COPY OF THE LETTER DATED 01.10.2020
ISSUED BY THE RESPONDENT.
RESPONDENT'S EXHIBITS : NIL
//TRUE COPY//
P.A.TO JUDGE
