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1. Distinction between partnership firm and a proprietary concern

Order XXX Rule 1 and Rule 10 of the Code of Civil Procedure reads as under:

1. Suing of partners in name of firm –
   (1) Any two or more persons claiming or being liable as partners and carrying on business in [India] may sue or be sued in the name of the firm (if any) of which such persons were partners at the time of the accruing of the cause of action, and any party to a suit may in such case apply to the Court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such manner as the Court may direct.
    

2. Where persons sue or are sued as partners in the name of their firm under sub-rule (1), it shall, in the case of any pleading or other document required by or under this Code to be signed, verified or certified by the plaintiff or the defendant, suffice if such pleading or other document is signed,
   verified or certified by any one of such persons …."
   …..

3. Suit against person carrying on business in name other than his own. -
   Any person carrying on business in a name or style other than his own name, or a Hindu undivided family carrying on business under any name, may be sued in such name or style as if it were a firm name, and, in so far as the nature of such case permits, all rules under this Order shall apply accordingly."

The Apex Court pointed out the distinction between partnership firm and a proprietary concern by observing that a partnership firm differs from a proprietary concern which is owned by an individual. A partnership is governed by the provisions of the Indian Partnership Act, 1932. Though a partnership is not a juristic person but Order XXX, Rule 1, CPC enables the partners of a partnership firm to sue or to be sued in the name of the firm.

A proprietary concern is only the business name in which the proprietor of the business carries on the business. A suit by or against the proprietary concern is by or against the proprietor of the business. In the event of the death of the proprietor of a proprietary concern, it is the legal representatives of the proprietor who alone can sue or be sued in respect of the dealings of the proprietary business. The provisions of Rule 10 of Order XXX, which make applicable the provisions of Order XXX to a proprietary concern enable the proprietor of a proprietary business to be sued in the business names of his proprietary concern. The real party who is being sued is the proprietor of the said business. The said provision does not have the effect of converting the proprietary business into a partnership firm.

Raghu Lakshminarayanan vs. M/s. Fine Tubes AIR 2007 SC 1634.

2. Gifts by Mohammedan S.

There are only three essentials for a gift by a Mohammedan; i.e., (i) declaration of the gift by the donor, (ii) acceptance thereof by the donee; (iii) putting the donee in possession of the property gifted.

State of A.P. vs. Bobbiti Subba Reddy & Ors. AIR 2007 (NOC) 1174 (A.P.)

3. Offence committed and proceeding initiated under FERA, 1973 prior to enforcement of new FEMA, 1999, will continue to be governed by the old repealed Act
   
   Facts

The petitioners were charged for contravention of certain provisions of FERA, 1973. The petitioner challenged the action of the respondent by contending that FERA, 1973 had been repealed and in its place the FEMA, 1999 came into operation and therefore initiation of proceeding under the repealed Act was bad in law.

Held

The Hon’ble Andhra Pradesh High Court dismissing the petition held that under section 49 of the Foreign Exchange Management Act, 1999 offences committed under the repealed Act would continue to be governed by the provisions of the repealed Act as if that Act had not been repealed. The show-cause notices were issued in respect of offences committed by the petitioners prior to the enactment of the Foreign Exchange Management Act, 1999 and while the Foreign Exchange Regulation Act, 1973, was in force. The appointment of adjudicators under the proceedings was to deal with the matters relating to the offences committed prior to the enforcement of the Foreign Exchange Management Act, 1999. The proceedings were saved by sub-section (4) of section 49 of the Foreign Exchange Management Act, 1999 and therefore the proceedings would continue to be governed by the repealed Act.

Mohd. Mustafa Ahmed Alvi & Ors. vs. UOI & Ors. [2007] 137 Comp. Cas 815 (AP).

 

4. Power of attorney executed outside India – engrossed on Indian non-judicial stamp paper is admissible document
   
   Fact

The petitioner in a revision petition against the order passed by a judicial magistrates passed in a title suit, contended that the power of attorney cannot be accepted since the power was executed at Malaysia by the respondent. The power should have been certified by the collector within three months from the date of execution as contemplated under the provisions of the Indian Stamp Act, 1899. As the same is not certified as contemplated under the provisions of the Act, the same cannot be relied upon.

Held

The hon’ble court rejected the contention with the observation that the power of attorney executed at Malaysia, but engrossed on Indian non-judicial stamp paper need not be produced before the Collector for certification since full stamp duty has been paid. The said document is admissible.

Since the power of attorney itself was already written in Indian stamp papers, it cannot be said that the failure to produce before the Collector within three months can be a ground to hold that it will disentitle the party from acting on the basis of such power. Further, the admissibility of the instrument not duly stamped is dealt with under section 35 of the Act. Improperly stamped instrument excepting the categories mentioned in clause (a) of section 35 shall be admitted in evidence on payment of duty with which the same is chargeable with a penalty. The power of attorney is not the one of the categories of the documents mentioned in section 35(a) of the Act. Hence, even assuming that the power of attorney is not duly stamped, the said document is admissible.

R.K.B. Rajeshwari Nachiar vs. N.N.S.A. Mohamed Kasim AIR 2007 Madras 155

5. Presumption of service of notice sent by registered post: Negotiable Instrument Act, 1881, sec. 138 and sec. 27 of General Clauses Act

The issue for consideration before the Apex Court was whether the mandatory requirement of issue of notice in terms of clause (b) of the proviso to section 138 of Negotiable Instrument Act, 1881 would stands complied by sending the notice by registered post at the correct address of the drawer.

Held

Section 27 of General Clauses Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post.

In view of the above presumption under section 27 of the General Clauses Act, when stating that a notice has been send by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. It is not necessary to aver in the complaint under section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business.

When the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of clause (b) of the proviso to section 138 of the Act stand complied with. It is needles to ‘emphasise that the complaint must contain the basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque.

It is well settled that at the time of taking cognizance of the complaint under section 138 of the Act, the court is required to be prima facie satisfied that a case under the said section is made out and the mandatory statutory procedural requirements have been complied with. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect. This interpretation of the provision would effectuate the object and purpose for which the proviso to section 138 was enacted, namely, to avoid unnecessary hardship to an honest drawer of a cheque and to provide him an opportunity to make amends.

C.C. Alavi Haji vs. Palapetty Mahammed & Anr. 2007 (137) Comp. Cas. 692 (SC)

6. Judgment should be reasoned even where the case was decided ex parte

The Hon’ble Bombay High Court observed that the process of reasoning by which the Court came to the ultimate conclusion and decreed the suit should be reflected clearly in judgment. Whether it is a case which is contested by the defendants by filing a written statement, or a case which proceeds ex parte and is ultimately decided as an ex parte case, or is a case in which the written statement is not filed and the case is decided under O.8, R. 10. The Court has to write a judgment which must be in conformity with the provisions of the Code or at least set out the reasoning by which the controversy is resolved.

It was further observed that what was the controversy and manner in which it was settled by Court should appear from judgment notwithstanding whether case was proceeded ex parte or written statement was not filed therein.

M/s. Meditronics Corporation of India & Ors. vs. Dr. Mrs. Salima A. Rais AIR 2007 (NOC) 735 (Bom) 2007 (1) AIR Bom R. 553.