There were 2 partners had an C&F agreement with govt company, now, one of the partner retired and firm got dissolved. Now the other person was doing business in the name of other firm without giving any information of dissolution and reconstruction of new firm. It came to the knowledge of the govt company when invoices was raised in the name of other firm(new firm). please suggest whether the approval can be given for clearing invoices if no, then please give reasons. as it is a govt organisation . so kindly suggest?
From India, New Delhi
From India, New Delhi
Dear Colleague,
In the given situation, you need to have a full reading and understanding on the Partnership Deed Copy. You have to understand what the terms of the Deed says about the Partners in the event of death of the other. Whether the legal heirs are bound by the clause are to be understood. Whether the rights are given to the other Partner alive to raise invoices on his own and act for the firm are all to be studied. Hence please read the copy of Deep of the Partnership with assistance of a Professional Lawyer and then only proceed on any steps.
From India, Chennai
309In the given situation, you need to have a full reading and understanding on the Partnership Deed Copy. You have to understand what the terms of the Deed says about the Partners in the event of death of the other. Whether the legal heirs are bound by the clause are to be understood. Whether the rights are given to the other Partner alive to raise invoices on his own and act for the firm are all to be studied. Hence please read the copy of Deep of the Partnership with assistance of a Professional Lawyer and then only proceed on any steps.
From India, Chennai
ABC is the CFA since 2016. their contract valid till 31.03.2022. there were two partners in the firm name ram and shyam. one of the partners ram has informed that their firm has dissolved on 31.03.2021 due to voluntary retirement of another partner, shyam. so ABC firm does not exist anymore.
Ram has uniformed us(govt organisation) that he is also the proprietor of another organisation, namely XYZ. Ram has proposed us to take all the liabilities of ABC Firm in the name of XYZ.
Ram has submitted the invoices in the month of december 2021. till that time govt organisation were avaling CFA's services and stocks have been dispatched to different locations as per supply orders given by govt organisation.
Now, the govt employee is requesting for post facto approval of Appointment of XYZ from 1.04.2021 to 31.03.2022.
ABC needs to be closed.
Please give advice what is to be done in this case
From India, New Delhi
Ram has uniformed us(govt organisation) that he is also the proprietor of another organisation, namely XYZ. Ram has proposed us to take all the liabilities of ABC Firm in the name of XYZ.
Ram has submitted the invoices in the month of december 2021. till that time govt organisation were avaling CFA's services and stocks have been dispatched to different locations as per supply orders given by govt organisation.
Now, the govt employee is requesting for post facto approval of Appointment of XYZ from 1.04.2021 to 31.03.2022.
ABC needs to be closed.
Please give advice what is to be done in this case
From India, New Delhi
Dear Colleague,
I do not think the forum can give direct answer to your question as it needs a deeper understanding on the Partnership Deed of ABC as well as Practical Knowledge on the Partnership Act 1932.
Hence it will be appropriate to consult a Practicing Lawyer on this subject earliest to go in the right direction or correct path. Based on given details ABC and XYZ are seems to be different and no connection between these to firms. Hence give due care in taking further steps and only option is to consult a Practicing Lawyer in the Filed of CIVIL LAWS.
For example the Act has specific provision for all aspects but has to be interpreted based on Facts and then to decide the Legal merits:
--------------------------------------------------------
The Partnership Act, 1932 Section32 RETIREMENT OF A PARTNER.
(1) A partner may retire -
(a) with the consent of all the otter partners,
(b) in accordance with an express agreement by the partners, or
(c) where the partnership is at will, by giving notice in writing to all the other partners of his intention to retire.
(2) A retiring partner may be discharged from any liability to any third party for acts of the firm done before his retirement by an agreement made by him with such third party and the partners of the reconstituted firm, and such agreement may be implied by a course of dealing between such third party and the reconstituted firm after he had knowledge of the retirement.
(3) Notwithstanding the retirement of a partner from a firm, he and the partners continue to be liable as partners to third parties for any act done by any of them which would have been an act of the firm if done before the retirement, until public notice is given of the retirement
Provided that a retired partner is not liable to any third party who deals with the firm without knowing that he was a party.
(4) Notices under sub-section (3) may be given by the retired partner or by any partner of the reconstituted firm.
----------------------------------------------------
Hence give due care in taking further steps and only option is to consult a Practicing Lawyer in the Filed of CIVIL LAWS. This needs to be done by you earliest and based on Lawyers' advice only you can decide further. Take Care.
From India, Chennai
I do not think the forum can give direct answer to your question as it needs a deeper understanding on the Partnership Deed of ABC as well as Practical Knowledge on the Partnership Act 1932.
Hence it will be appropriate to consult a Practicing Lawyer on this subject earliest to go in the right direction or correct path. Based on given details ABC and XYZ are seems to be different and no connection between these to firms. Hence give due care in taking further steps and only option is to consult a Practicing Lawyer in the Filed of CIVIL LAWS.
For example the Act has specific provision for all aspects but has to be interpreted based on Facts and then to decide the Legal merits:
--------------------------------------------------------
The Partnership Act, 1932 Section32 RETIREMENT OF A PARTNER.
(1) A partner may retire -
(a) with the consent of all the otter partners,
(b) in accordance with an express agreement by the partners, or
(c) where the partnership is at will, by giving notice in writing to all the other partners of his intention to retire.
(2) A retiring partner may be discharged from any liability to any third party for acts of the firm done before his retirement by an agreement made by him with such third party and the partners of the reconstituted firm, and such agreement may be implied by a course of dealing between such third party and the reconstituted firm after he had knowledge of the retirement.
(3) Notwithstanding the retirement of a partner from a firm, he and the partners continue to be liable as partners to third parties for any act done by any of them which would have been an act of the firm if done before the retirement, until public notice is given of the retirement
Provided that a retired partner is not liable to any third party who deals with the firm without knowing that he was a party.
(4) Notices under sub-section (3) may be given by the retired partner or by any partner of the reconstituted firm.
----------------------------------------------------
Hence give due care in taking further steps and only option is to consult a Practicing Lawyer in the Filed of CIVIL LAWS. This needs to be done by you earliest and based on Lawyers' advice only you can decide further. Take Care.
From India, Chennai
As per the Partnership Act 1932, once a partner retires then the original partnership firm would no longer exist. So ABC Firm is not in existence since 31.03.21. It is a fact that the Govt. organisation continued the dealings with XYZ firm for various reasons and now the matter is put up for post facto approval.
The methodology adopted in switching over from ABC to XYZ is definitely wrong and is improper. It is not allowed in government sector to change the contract without following the due process. But now that there are pending bills of ABC Firm, and the dealings were continued inspite of the knowledge of the factual position, they have to be resolved. So the suggestion is that the competent authority may approve the same, subject to the fact that the rates remain the same, there is no downward trend in the market, the services were satisfactory etc and pass a reasoned order mentioning all these facts. Before the approval you may consider appointing a committee of 2-3 department heads and take their recommendation on record. The responsible officials shall be warned for their negligence in not following the required rules in this regard.
In this process you may resolve an otherwise complicated matter without inviting the wrath of Vigilance and other such agencies.
Such instances happen in government organisations where officials out of their enthusiasm to get the work done adopt short cuts and later it becomes a head ache for the approving authority. This process was adopted in some such instances and I could clear the old mess created by some body else without burning my fingers in the process.
From India, Mumbai
The methodology adopted in switching over from ABC to XYZ is definitely wrong and is improper. It is not allowed in government sector to change the contract without following the due process. But now that there are pending bills of ABC Firm, and the dealings were continued inspite of the knowledge of the factual position, they have to be resolved. So the suggestion is that the competent authority may approve the same, subject to the fact that the rates remain the same, there is no downward trend in the market, the services were satisfactory etc and pass a reasoned order mentioning all these facts. Before the approval you may consider appointing a committee of 2-3 department heads and take their recommendation on record. The responsible officials shall be warned for their negligence in not following the required rules in this regard.
In this process you may resolve an otherwise complicated matter without inviting the wrath of Vigilance and other such agencies.
Such instances happen in government organisations where officials out of their enthusiasm to get the work done adopt short cuts and later it becomes a head ache for the approving authority. This process was adopted in some such instances and I could clear the old mess created by some body else without burning my fingers in the process.
From India, Mumbai
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