Firos C.M. Petitioner v. The Director, The Di..., Madras High Court, Judgment, Law, casemine.com

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Case Number

W.P. No. 42331 of 2016

Advocates

Mr. Mubarak Ahamed for M/s. Ahmed Associates
Mr. S. Rajeswaran Spl. Govt. Pleader

Judges

B. Rajendran, J.

Acts

SECTION 72 PARTNERSHIP ACT 1932
Section 43 of the Indian Partnership Act, 1932.
ARTICLE 226 CONSTITUTION OF INDIA
Section 72(b)

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Smart Summary

Factual and Procedural Background

The petitioner filed a writ petition under Article 226 seeking a writ of Mandamus directing the respondent to issue orders for publication of a Gazette Notification of a Public Notice, based on the petitioner's request dated 28.11.2016.

The petitioner states he is an unregistered partnership firm named M/s. Faruuzi. Owing to loss and accrued rental dues, the landlord terminated the lease. The partners passed a resolution dated 18.11.2016 to dissolve the firm and the partnership business was stopped with effect from the night of 20/21 November 2016. The petitioner sent a notice of dissolution as required under Section 43 of the Indian Partnership Act, 1932; the notice was received by the partners between 22.11.2016 and 24.11.2016. The petitioner informed the statutory authority and third‑party creditors and published a Public Notice in the vernacular newspaper Dinamalar on 25.11.2016. The petitioner sought publication of the same Public Notice in the Government Gazette, which had not been entertained by the respondent, prompting this petition.

Legal Issues Presented

Whether the respondent ought to be directed to issue necessary orders for publication of the petitioner's Public Notice in the Government Gazette in response to the request dated 28.11.2016.
Whether, in the case of an unregistered partnership firm, publication of a notice (including in the official Gazette) is required to absolve a retiring partner of liability to third parties, as contemplated under the Partnership Act provisions relied upon by the petitioner and by precedent.

Arguments of the Parties

Petitioner's Arguments

The petitioner relied on the judgment Meenakshi Sathish v. Southern Petrochemical Industries Corporation Ltd. ((2008) 2 MLJ Crl. 117) to contend that even for an unregistered partnership firm, publication of a Public Notice in the official Gazette is mandatory to give notice of dissolution and to address the liability of partners upon retirement/reconstitution.
The petitioner asserted compliance with the statutory procedure: resolution for dissolution, notice under Section 43, informing statutory authority and creditors, and publication in the vernacular newspaper (Dinamalar) on 25.11.2016; he sought only the Government Gazette publication which was not entertained.

Respondent's Arguments

The respondent's counsel (Special Government Pleader) argued that because the firm is unregistered, details of the partnership (including retirement/reconstitution) cannot be published in the Gazette unless the petitioner establishes the details of the partners; the respondent maintained that the unregistered firm's particulars do not disclose the existence of the original partnership and therefore publication cannot be entertained.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Meenakshi Sathish v. Southern Petrochemical Industries Corporation Ltd., (2008) 2 MLJ Crl. 117	Conjoint reading of Section 45 and Section 72 of the Partnership Act, 1932 — public notice in the official Gazette and local newspaper is required even for an unregistered partnership to put third parties on notice about reconstitution and to effect cessation of liability of a retiring partner (including Section 72(b)).	The court relied on this judgment to confirm that publication requirements apply to unregistered firms and used it to justify directing the respondent authority to consider the petitioner's request for Gazette publication, noting the petitioner had already published in the vernacular newspaper and provided required details.

Court's Reasoning and Analysis

The court examined the petition in light of the cited precedent (Meenakshi Sathish). That judgment was interpreted to hold that the combined effect of Section 45 and Section 72 of the Partnership Act, 1932 requires public notice (both in the official Gazette and a local newspaper) even for unregistered partnership firms to inform third parties and effect cessation of liability of a retiring partner.

The respondent's position was that an unregistered firm’s particulars do not allow publication in the Gazette unless partner details are established. The court, however, observed that the petitioner had already issued the Public Notice in a vernacular newspaper (Dinamalar) and had furnished the details required. Applying the precedent, the court concluded that, given the petitioner's compliance with the newspaper publication and provision of details, the authority should consider the request for Gazette publication.

The court's analysis followed the existing authority rather than revisiting or overruling it; the decision was grounded on the cited precedent and the petitioner's demonstrable steps toward publication in a newspaper and notification to relevant parties.

Holding and Implications

DISPOSED OF. The writ petition was disposed of with a direction: the authority shall consider the petitioner's request for publication in the Government Gazette and pass orders within four weeks.

Implications:

Direct effect on the parties: the authority is required to consider and decide the petitioner's request for Gazette publication within four weeks; the petition is disposed of and the court ordered no costs.
The opinion applies an existing precedent (Meenakshi Sathish) to confirm that public notice requirements under Sections 45 and 72 of the Partnership Act apply to unregistered firms; the court did not announce a new legal principle beyond the precedent it followed.

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Firos C.M. Petitioner v. The Director, The Directorate Of Stationary And Printing, Stationary And Printing Department, No. 110, Anna Salai, Chennai 600 002

Prayer: Writ petition filed under Article 226 of the Constitution of India praying for issuance of a writ of Mandamus directing the respondent to issue necessary orders for the publication of a Gazette Notification of a Public Notice, on the request of the petitioner dated 28.11.2016

B. Rajendran, J.:— This writ petition has been filed to issue a writ of Mandamus directing the respondent to issue necessary orders for the publication of a Gazette Notification of a Public Notice, on the request of the petitioner dated 28.11.2016

2. According to the petitioner, he is an unregistered partnership firm viz., M/s. Faruuzi. As a partnership having suffered loss and due to accured rental dues, the landlord has terminated the lease. Therefore, merely to dissolve the firm, as per the resolution passed in the meeting of the partners dated 18.11.2016 and partnersip business was stopped with effect from midnight of 20th and 21st november 2016. He sent notice of dissolution of the firm, as required under Section 43 of the Indian Partnership Act, 1932. The said notice was received by all the partners of the firm between 22.11.2016 and 24.11.2016 An information was given to the statutory authroity and also 3rd party creditors, apart from the Public Notice as contemplated, in the Vernacular Newspaper, made in Dinamalar Daily dated 25.11.2016, for dissolution of the firm. The petitioner wants to make the Public Notice in the Government Gazette but that has not been entertained. Hence he has come forward with the present writ petition.

3. In this connection, he would rely upon the Judgment of this Court reported in (2008) 2 MLJ Crl. 117, Meenakshi Sathish v. Southern Petrochemical Industries Corporation Ltd. 641 002 rep. by its Regional Manager L. Krishnakumar, to substantiate, even in a case of unregistered partnership firm, Public Notice in the official Gazette in a mandatory one i.e to give notice about the dissolution and the liability of the partners from the retirement of partnership. Therefore, he would contend that only for that purpose, he wants to make the Public Notice in the Government Gazette.

4. The learned Special Government Pleader appearing for the respondent would contend that since it is unregistered partnership firm the detail of the retirement of partnership in the Gazette, cannot be published. The petitioner should establish the details of the partners in the partnership and as the details of the unregistered firm does not disclose the existence of the original partnership it cannot be entertained.

5. Taking into consideration, the Judgment of this Court reported in (2008) 2 MLJ Crl. 117, even in a case of unregistered partnership firm to got absolve the liability unless the Public Notice in the Newspaper and in the Government Gazette is made the petitioner cannot absolve the liability from the 3 party. It is extracted as hereunder:

“10. The conjoint reading of Section 45 and Section 72 of the Partnership Act, 1932 makes it clear that even in a case where the Partnership Firm was an unregistered one, in order to save the third parties who are dealing in business with the Partnership Firm, public notice in the official gazette and also in the local newspaper about the retirement of a partner is very much required for the purpose of putting the third parties to notice about its reconstitution and the cession of liability of the partner who had already retired.

11. In this case, as rightly pointed out by the learned Senior Counsel appearing for the complainant, the petitioner, who allegedly retired from the Partnership Firm on the basis of the unregistered deed of reconstitution, has not chosen to give any public notice as mandated under Section 72 of the Partnership Act, 1932 to shirk her liability as contempalted under Section 45 of the said Act. Therefore, even assuming for the sake of argument that the fourth accused had already left the Partnership Firm, she is liable for the acts of the reconstituted Partnership Firm as her retirement was not published in terms of Section 72(b) of the said Act.”

6. In this case, as the petitioner has also already published in the Vernacular News Paper and has also given the details as required, the authority will consider the request of the petitioner for Publication in the Government Gazette within a period of four weeks and pass orders.

7. This writ petition is accordingly disposed of. No costs.

Firos C.M. Petitioner v. The Director, The Di...