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Effect of non registration of
Partnership firm, Partnership Act, 1932 : Sec. 69(2)
A suit against a partnership
firm which is not registered would not be maintainable. Firm was not
registered on date of filing of suit. Subsequent registration of firm would
not cure the defect.
Thawariya vs. Firm Rajesh
Kumar Heera Lal AIR 2007 (NOC) 901 (Raj.)
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Co-operative banks
transacting the business of banking do not fall within meaning of banking
company
The Hon’ble Apex Court while
deciding the issue under Recovery of Debts Due to Banks and Financial
Instituting Act, 1993 observed that Co-operative banks established under the
Maharashtra Co-op. Societies Act, 1960 (MCS Act, 1960); the Andhra Pradesh
Co-op. Societies Act, 1964 (APCS Act. 1964); and the Multi State Co-op.
Societies Act, 2002 (MSCS Act, 2002) transacting the business of banking, do
not fall within the meaning of ‘banking company’ as defined in s. 5(c) of the
Banking Regulation Act, 1949 (BR Act). Therefore, the provisions of the
Recovery of Debts Due to banks and Financial Inst. Act, 1993 (RDB Act) by
invoking the Doctrine of Incorporation are not applicable to the recovery of
dues by the co-operative from their members. Even if the co-operatives are
involved in the activity of banking which involves lending and borrowing, this
is purely incidental to their main co-operative activity which is a function
in public domain.
Greater Bombay Co-op. Bank
Ltd. vs. United yarn Tex Pvt. Ltd. & Ors. AIR 2007 SC 1584
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Offence gets completed on the
failure of the drawer of the cheque to comply with the notice of demand issued
u/s. 138(b) of Negotiable Instruments Act 1881
The Hon’ble Bombay High Court
held that no drawer of a cheque can be absolved of his liability under section
138 of the Act if he makes the payment after the notice and before the filing
of the complaint and the offence gets completed on the failure of the drawer
of the cheque to comply with the notice of the demand as contemplated by
proviso (b) to sec. 138 of the Act. Any subsequent payment by the drawer of
the cheque after failure to comply with the notice either before or after
filing the complaint, could be taken only towards the mitigation of the
sentence to be imposed upon the drawer of the cheque; i.e., the accused in a
given case.
William Rosario Fernandes vs.
M/s. Cabral & Co. Anr. 2007 (2) AIR BOM R 288
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Hand loan between relatives
is not a commercial transaction
The plaintiff and the
defendant were relatives of each other. The defendant in order to start his
business took a loan from the plaintiff. There was no agreement entered into
between the parties to pay interest. The plaintiff claimed interest rate @ 15%
per annum on the basis that the transaction was a commercial transaction.
The Hon’ble Court held that
the parties been relatives the taking of hand loan, for whatever purpose,
cannot come within the definition of commercial transaction and therefore the
rate of future interest must be restricted to 6% per annum.
Mangesh Rajkumar Kanhed vs.
Ramesh Bhagwansa Walale AIR 2007 Bombay 86
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Alienation of joint family
property by Karta: Hindu Law
A karta has power to alienate
for value the joint family property either for necessity or for benefit of the
estate. He can alienate with the consent of all the coparceners of the family.
When he alienates for legal necessity he alienates an interest which is larger
than his undividual interest. When the Karta, however, conveys by way of
imprudent transaction, the alienation is voidable to the extent of the
undivided share of the non consenting coparcener.
Subodhkumar & Ors vs.
Bhagwant Namdeorao Mehetre & Ors. AIR 2007 SC 1324
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Banks been secured Creditor
have precedence over Central Excise claim as well as Customs claim
The petitioner bank took
possession of the property under S. 13 of Securitization and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002, it would be a
secured creditor and would have precedence over “crown’s debt” namely Excise
department in instant case, in absence of specific provision claiming first
charge in Central Excise Act as well as Customs Act.
Generally, the debts to
Government, i.e. tax, dues, etc. (crown debts) get priority over ordinary
debts. Only when there is a specific provision in the statute claiming ‘first
charge’ over the property, the crown debt is entitled to have priority over
the claim of others. In the absence of such specific provision in the Central
Excise Act as well as in Customs Act claim of secured creditor will prevail
over crown’s debts.
UTI Bank Ltd. vs. The Dy.
Commissioner of Central Excise, Chennai & Anr. AIR 2007 Madras 118 (FB)
