Kuriachan Chacko and Ors vs. The Registrar of Firms, Office of Inspector General of Registration, AIR 2014 Kerala 109
The Registrar of firm rejected the request of the petitioners to record the amendment brought about to Clause No. 12 of Partnership Deed dated 12-11-2002, whereby the specified tenure of ‘five years’ was sought to be amended as ’30 years’ with some other modifications, which was refused to be registered on the ground that the tenure of the firm was already over in 2007. The petitioners constituted a firm in the name and style as “M/s. LIS Ernakulam.”
Admittedly, the tenure of the firm was stipulated as ‘five years’. But according to the petitioners, as per Resolution 3 dated 30-10-2006, the members of the firm, had amended Clause No. 12 of the partnership deed, stipulating that the duration of the firm shall be for a minimum period of ’30 (thirty) years’; and that the firm shall not stand dissolved on the death of any of the partners and shall continue the business of the firm with the legal representatives of such deceased partner’s. The petitioners contend that, even though the resolution was taken as early as in the year 2006, it was unfortunately omitted to be brought to the notice of the respondent, for being incorporated in the Register. The lapse was noticed only in September, 2013 and immediately thereupon, the first petitioner who is described as the Managing Trustee/Partner as per Partnership Deed, preferred representation before the respondent, also forwarding a copy of the Minutes dated 30-10-2006 and an affidavit to that effect, seeking to have the modifications incorporated in the relevant Register. After considering the request, it was rejected by the respondent as mentioned hereinbefore, which in turn is under challenge in the Writ Petition.
The Hon’ble Court observed that the point to be considered is whether resolution stated as taken on 30-10-2006, amending Clause 12 of Deed of Partnership, modifying the tenure of the firm from five years to 30 years could be directed to be incorporated in the Register, for the reason that sub-Rule (2) of Rule 4 of the Partnership (Registration of Firms) Rules 1959 has been declared as illegal and ultra vires and struck off from the relevant Rules.
Evidently, sub-Rule (2) of Rule 4 of the Rules prescribes a time limit of 15 days from the occurrence of the event with reference to statement/notice in relation to the firm under s/s. 60, 61, 62, 63(1) and 63(2). Section 60 deals with recording of alteration in firm name and principal place of business. Section 61 is in respect of noting of closing and opening of branches. Coming to Section 62, it is in respect of noting of changes in names and addresses of the partners. Section 63 deals with recording of changes in and dissolution of the firm. Even a plain or casual reading is enough to hold that the situations contemplated under s/s. 60, 61 and 62 are not attracted to the situation of the case in hand.
On expiry of tenure of firm, dissolution is automatic. Amendment of tenure from five years to 30 years was not brought to notice of Registrar nor incorporated in Register at time firm was in existence. Amendment sought to be incorporated subsequent to dissolution cannot be allowed as the firm stood automatically dissolved and lost colour and characteristics of a registered firm. Therefore, refusal to incorporate amendment was proper.
