Act/Law wise: Judgment of Supreme Court of Bangladesh

ALL A B C D E F G H I J K L M N O P Q R S T U V W X Y Z



Partnership Act, 1932
Section/Order/Article/Rule/Regulation Head Note
Section 6

Criminal breach of trust—Defence p of partnership against the offence—In determining whether a person is or is not a partner regard shall be had to the real relation between the parties as shown by all receive facts taken together—With regard to transaction that gave rise to the case the complainant used the terms howlas’ in his cot plaint and the word jimma in his depositia which clearly connote entrustment—It is not the case of the prosecution or of the defenc ethat the profits of the sale in question would be distributed between them—The -prosecution case of entrustment was fully proved Mohammad Musa Vs. Kabir Ahmed and another, 9BLD (AD) 118 ....View Full Judgment

Sections 14 and 59

The acquisition of immovable property in the name of reg-istered partnership firm could not be treated as acquisition by the partners of the firm and that the said immovable property always remained as the property of the registered partnership firm under the provi-sion of section 14 of the Partnership Act, 1932.
Dine Ara Begum and others. -Vs.- Ban-gladesh Rubber Industries, a registered Partnership Firm, represented by its Managing Partner, Mr. Ifteker Hussain and others. (Civil) 12 ALR (AD) 100-108 ....View Full Judgment

Sections 14, 46 and 69(2)

read with section 4s of the Transfer of Property Act, 1882—
Property of the firm—Section 14 is in the nature of an inclusive definition. It does not properly define the expression ‘the property of the firm’.
In paragraph 2 section 14 a legal fiction has been created. Though property acquired with money belonging to the firm may not have been acquired for the firm, yet, by a legal fiction, the said property is “deemed to have been acquired for the firm, unless the contrary intention appears.”
The legal fiction creates only a rebuttable presumption. Even when the purchase money is money belonging to the firm, that fact itself is not decisive.
Whether the disputed property is or is not a partnership property. Would depend upon the intention of the partners as the second paragraph of section 14 specifically lays down,. Evidence is admissible to show that a contrary intention governed the transaction.
The contrary intention may justifiably be gathered from (a) the purpose for which the property was acquired; and (b) the mode in which it has been dealt with. These two considerations, it appears, are germane to the determination of contrary intention.
When the suit properties are net partnership properties, the bar of section 69(2) of the Partnership Act is not attracted.
Where properties were acquired by them jointly for their own benefit and not for the benefit of the partnership and therefore, under section 14 of the Partnership Act read with Section 45 of the Transfer of Property Act, the properties in suit were not partnership properties.
Mahbubul Alam chowdhury and others Vs. Chaman Ara Begum and others, 12 BLD (AD) 186 ....View Full Judgment

Section 19(2)(b)

Partnership entered into by two firms—Deed of partnership signed by one partner of one firm on his own behalf alone, and by one partner of the other firm on behalf of his firm— bigger partnership not formed. S.A. Rahim & Ors. Vs. Commr. I Tax Punjab (1959) 11 DLR (SC) 289. ....View Full Judgment

Section 22

Whether a partner’s share in a partnership property is treated as moveable property or not.
The Appellate Division held that it is a property which has been originally brought in by the partners when the partnership is formed and also the property which is acquired in the course of business of the firm. There is no gainsaying the fact that as the property belongs exclusively to the firm, no partner can claim any part of the property as his own and what a partner is entitled to is his share of profits only, so long the partnership continues. Upon dissolution of the partnership, his share is his proportion of money representing the firm’s asset including immovable property after liquidation of the partnership debts and liabilities.
Dine Ara Begum and others. -Vs.- Bangladesh Rubber Industries, a registered Partnership Firm, represented by its Managing Partner, Mr. Ifteker Hussain and others. (Civil) 12 ALR (AD) 100-108 ....View Full Judgment

Sections 31 to 55

Retirement of a partner—It is a different concept from dissolution of the firm—The consequences flowing from each are entirely different—In the case of retirement of a partner, it is only the partner who goes out of the firm and the remaining partners continue to carry on the business—In the latter case the firm as such no more exists and the dissolution is between all the partners of the firm. Liu Ying Ping Vs. Leon Fang Al, 5BLD (AD)24 ....View Full Judgment

Section 32

Legal status of the partnership firm–
Under the Partnership Act, a partnership has not been given any legal status. It is not a juristic person and the independent status given to the partnership firm under the Act has to be limited only for the purposes of that.
A firm is not an entity or 'person' in law but is merely an association of individuals and a firm name is only a collective name of those individuals who constitute the firm. In other words, a firm name is merely an expression, only a compendious mode of designing the persons who have agreed to carry on business in partnership. .....Dine Ara & others =VS= Bangladesh Rubber Industries & others, (Civil), 2016-[1 LM (AD) 91] ....View Full Judgment

Sections 32(3) and 72

Retiring partner—Continuation of his liability—A retiring partner continues to be liable for any subsequent act of any other partners as his retirement is not effective unless and until other partners agree to discharge him of possible liability and a public notice is given under provisions of the law. Md. Mahmudun Nabi Vs. Mafizur Rahman Manju and others, 10BLD (AD) 132 ....View Full Judgment

Sections 32(3) and 72

Liability of a retiring partner—Under Section 32(3) read with section72 of the partnership Act, retiring partner continues to be liable for any subsequent act of any other partners which would bind the firm until the public notice as prescribed by section 72 is given.
Thus assuring that it was a partnership firm and the respondent No.1 had severed his connection still his liability to the Upazila Parishad continues. This point is now well- settled that the retirement of the partner is not effective unless and until other partners agree to discharge him of possible liability and a public notice is given under section 72.
Liability of a partner—Where the creditors are not notified of dissolution any ackriowledgement made and by ex-partner shall be binding on the Firm and its partners.
Md. Mahinudun Nabi Vs. Mafizur Rahman Manju and others, 10 BLD (AD) 231. ....View Full Judgment

Section 37

. Outgoing partners’ right in the partnership—asset of the partnership—Principles which govern the assessment of the outgoing (or deceased) partner in the assets of the partnership.
The outgoing partner has either to claim a share in the profits made since he ceased to be a partner in so far as that may be attributable to the use of his1 share of the property of the firm or to claim interest at the rate of 6% per annum.
The principle accepted is that the deceased or the outgoing partner has rights over all the assets of the partnership and that this right is in the nature of an unascertained interest in every single item of asset thereof. He cannot be regarded merely as a person entitled to a particular sum of cash ascertained upon the striking of balance. If the continuing partners choose to carry on the business they obviously utilize the assets of the partnership and are thus placed in a fiduciary position with regard to the share of the outgoing partner in those assets. This makes them liable to account for whatever profits are attributable to such user. Usman vs. Omar Haji (1966) 18 DLR (SC) 322. ....View Full Judgment

Section 39

(dissolution of a firm).
Retirement of a partner from a partnership firm and dissolution of the firm are quite distinct.
Retirement of a partner from a firm and dissolution of the firm are quite distinct and a clear distinction exists between the two concepts, inasmuch as the consequences flowing from each are entirely different. Liu Ying Ping Vs. Leon Fang Ai (1984) 36 DLR (AD) 273. ....View Full Judgment

Section 43

Dissolution of Partnership—In case of partnership-at-will it is dissolved by notice— Filing of a plaint by a partner is enough to put a and to the partnership. Mujibur Rahman Sikder Vs. Mahbubur Rahman Sikder and others. 3BLD (AD) 164 ....View Full Judgment

Section 43 and 69

Dissolution by notice of partnership at will—Effect of non-registration of a firm.
An oral agreement was arrived at between the appellant and respondent that they would carry on jointly the business of military contracts on the basis of equal share in profits and losses, and the business was carried on till the end of March, 1946, when all war contracts ceased.
A suit thereafter was brought for a declaration of dissolution of partnership and rendering of accounts. The existence of partnership was denied and the liability for rendering accounts too. Maintainability of the suit was also questioned.
Held— (1) Since the partnership was confined to a particular class of business venture and it term mated automatically with the termination of the venture neither section 43 nor section 69 of the Act would be a heard to the maintainability of the suit for accounts of a dissolved firm.
(2) No notice was necessary under section 43 of the Act to sustain a claim for accounts of a partnership in certain ejmali contracts which on completion of the business terminated in March, 1946.
Sudhangshu Bimal Biswas Vs. Md. Mustafa Chowdhury; (1960) 12 DLR (SC) 259. ....View Full Judgment

Section 43

—Notice under section 43 when can held not necessary.
An oral agreement was arrived at between the appellant and respondent the, they would carry on jointly the business of military contracts on the basis of equal share in profits a losses and the business was carried on till the end March, 1946, when all war contracts ceased.
A suit was brought for a declaration of disso lion of partnership and rendering of accounts. The defendant denied existence of partnership and also I, liability for accounts and further contended that ti suit was not maintainable in law.
Held— Where a partnership was confined particular class of ventures which ant came to an end with the termination of those ventures no notice under section 43 was necessary.
Even if ii. be held that the partnership, if proved was one at will the exchange of notices and the counter—claim made by the plaintiff as a simple creditor must be taken to amount to a notice to terminate the partnership as well as to a dissolution by consent.
Sudhanjshu Bimal Biswas Vs. Md. Most Chowdhury, (1960) 12 DLR (SC) 259. ....View Full Judgment

Section 69

Amendment of the plaint by substituting original prayer—Amendment of the plaint by substituting the original prayer for declaration of share and accounts of an unregistered firm, by dissolution and accounts, whether maintainable—Whether such amendment will change the nature and character of the suit—The proposed amendment was necessary for avoiding multiplicity of proceedings and complete adjudication of the disputes between the parties on determination of the real question in controversy—The suit was originally for declaration of shares and accounts — By amending the prayer the plaintiff now also seeks dissolution of the firm—It is difficult to understand why the prayer for dissolution cannot proceed in combination with the original prayer in the plaint—If a partner of an unregistered firm can maintain a suit for dissolution and accounts, his prayer for declaration of his share may as well be tried prior to dissolving the firm—Whatever bar was imposed by the provisions of sub-section (1) and (2) of section 69 of the Partnership Act cannot stand in the way of combining the prayers—The prayer for amendment is allowed. Radha Krishna Jogani (Agarwalla) Vs. Dwarka Das Agarwalla and others, 5BLD (AD) 85 ....View Full Judgment

Section 69

Applicablity of provision of section 69 when the suit is one for accounts of dissolved firm.
Where on an interpretation of the plaint it is evident that the suit was for the accounts of a dissolved firm, the provisions of section 69 would not be a bar for the maintainability of the suit.
Sudhanjshu Birnal Biswas Vs. Md. Mustafa Chowdhury. (1960) 12 DLR (SC) 259 ....View Full Judgment

Section 69(1)(2)(3)

Partnership firm —A suit originally filed for declaration of rights and for accounts—By a subsequent prayer and additional ground namely for dissolution of the firm was sought to be included in the suit—Question arose whether the amendment sought would alter the nature of the suit so as to substitute one cause of action for another cause in the suit and whether such an amendment may be allowed under Or. 6, r.17 CPC.
Ans. An amendment of such nature in the plaint may be allowed under the provisions of law without affecting the nature of the Suit. Radha Krishna Jogani Vs. Dwarka Das Agarawalla (1984)36 DLR (AD) 253 ....View Full Judgment