2022 (7) TMI 3

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.... other partners and one of the partners, Mr Rupesh D. Naik present there was not willing to supply the aforesaid material on the strength of a postdated cheque. However, since the appellant knew the respondents, the appellant agreed to supply the textile material by accepting the cheque in his personal capacity and assured the partners who were present in the shop that he would transfer the amount in the account of the partnership firm, the moment the postdated cheque was realised. The appellant also accepted the responsibility for payment of the said amount to the partnership firm "Saroj Emporium". Trusting the words and representations of respondents No.1 and 2, the appellant on 10/05/2010 supplied the aforesaid material to respondents No.1 and 2, worth Rs. 7,50,000/-. The respondent No.2 issued a postdated cheque bearing No.775820 of 29/05/2010 drawn on the Axis Bank Limited, Panaji Branch, in the name of the appellant, which is the subject matter of the present case. 3. On presentation, the said cheque was returned dishonoured with the remark "Account closed". The payment was not made despite demand through statutory legal notice and ultimately the complaint in question was ....

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....n question, before the Trial Court. 8. Now, the only submission urged by Mr. V.P. Thali, learned Counsel appearing on behalf of the complainant/appellant was that Section 45 of the Indian Partnership Act,1932 cast an obligation upon the partners of the firm to issue public notice of the dissolution of the firm. According to him, no public notice of such dissolution was given nor the alleged fact of dissolution of the firm-respondent No.3, was stated by the respondents in their evidence nor in their statements recorded under Section 313 of the Cr.P.C.,1973. In his view, until the public notice is given of the dissolution, the partners continued to be liable as such to third parties for any act done by any of them which would have been the act of the firm if done before the dissolution. Therefore, the respondent No.2 cannot run away from his statutory responsibility in view of the provisions of Sections 45 and 72 of the Indian Partnership Act,1932. 9. The learned Counsel for the appellant has placed reliance on the judgments of the Hon'ble Supreme Court and this Court in Katta Sujatha (SMP) v/s. Fertilizers and Chemicals Travancore Ltd. and another,(2002) 7 SCC 655, S. M. S....

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....egations made in the complaint fulfilled the requirement of Section 141 of the Act or not and record a definite finding on that point which it completely failed to do. 12. In the case of S.V. Muzumdar and others v/s. Gujarat State Fertilizer Co. Ltd. and another, 2005 (3) Mh.L.J.754, it has been held as follows: "8. We find that the prayers before the Courts below essentially were to drop the proceedings on the ground that the allegations would not constitute a foundation for action in terms of section 141 of the Act. These questions have to be adjudicated at the trial. Whether a person is in charge of or is responsible to the company for conduct of business is to be adjudicated on the basis of materials to be placed by the parties. Sub-section (2) of section 141 is a deeming provision which as noted supra operates in certain specified circumstances. Whether the requirements for the application of the deeming provision exist or not is again a matter for adjudication during trial. Similarly, whether the allegations contained are sufficient to attract culpability is a matter for adjudication at the trial." 13. So far as the second contention of the appellant, ....

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....he notice as required by Section 45 of the Indian Partnership Act, 1932, would arise only when any liability is incurred by an erstwhile partner in respect of a third party after the dissolution of the Partnership Firm in question. I have already indicated earlier that the respondent No.2 had admitted his signature on the cheque in question and therefore, the presumptions under Sections 118 and 139 of the Act would come into play. Merely stating that on the basis of the alleged promise of the complainant to deliver the iron ore, the respondent No.2 had issued the cheque in question, is not sufficient to rebut the statutory presumption which arose in favour of the appellant. The cheque in question does clearly indicate that it was issued by the respondent No.2, in the capacity of the partner of the respondent No.3-firm, after the said firm was dissolved. Though the statutory notice was served on the respondents, they did not choose to reply to the said notice. In this backdrop, it cannot lie in the mouth of the respondent No.2 to say that he had incurred no liability on behalf of the dissolved firm towards the appellant when he had drawn and issued the cheque in question, posing as ....