High Court of KeralaSingle Judge2018-04-06Writ petitions disposed of. The Registrar shall...

W.P.(C) Nos. 4493 & 4505 of 2018

Case / Petition Number:WP(C).No. 4493 of 2018 and WP(C).No. 4505 of 2018

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Muhamed Mustaque
Judgment Date: 2018-04-06
Court Decision / Holding: The writ petitions are disposed of by holding that there is no bar for the Registrar to accept intimations after 15 days, but late intimations do not relate back to the date on which the event occurred. Where intimations are within 15 days, the date of the event is preserved; otherwise, registration becomes effective from the date of intimation. The Registrar is directed to make the necessary entry by giving effect to the intimation from the date of its presentation before the Registrar.
Final Disposition: Writ petitions disposed of. The Registrar shall record intimation entries from the date of presentation; late intimations accepted but not back-dating to event date; Rule 4(2) upheld as valid in the given circumstances.

Parties to the Case

Appellants / Petitioners

M/S DEEPTHI GRANITE METALS
MRS. JOICY JOY
MR.JOSEPH PAULACHAN
MRS.MEERA VARGHESE
MRS. ROSEMARY VARGHESE
MR.SAJU VARGHESE
MR.BENNYSON K. J.
MR. SIJO GEORGE
MRS.SONY THOMAS
MR.JOSE P.O.
MRS.TESSY JOSE
MR.M.J.JOY
MR.SABU THOMAS

Respondents

STATE OF KERALA, represented by its Chief Secretary to Government, Secretariat, Thiruvananthapuram
THE REGISTRAR OF FIRMS, OFFICE OF THE INSPECTOR GENERAL OF REGISTRATION, DEPARTMENT OF REGISTRATION, VANCHIYUR P.O., THIRUVANANTHAPURAM-695035

Legal Representation & Advocates

Counsels for Petitioners

• SRI.M.GOPIKRISHNAN NAMBIAR
• SRI.P.GOPINATH
• SRI.K.JOHN MATHAI
• SRI.JOSON MANAVALAN
• SRI.KURYAN THOMAS
• SRI.PAULOSE C. ABRAHAM

Counsels for Respondents

• SRI K.V.SOHAN, State Attorney

Case Synopsis & Summary

This judgment deals with two writ petitions filed by reconstituted partnership firms and their partners seeking direction to the Registrar of Firms to record changes in the firms’ constitutions, despite intimations being filed after the 15-day deadline prescribed by Rule 4(2) of the Kerala Partnership (Registration of Firms) Rules, 1959. The Court analyzes the statutory framework of the Indian Partnership Act, 1932, particularly Sections 58-63, which deal with registration, notes of changes, and the recording of alterations, and Section 69(2), which bars enforcement of contract rights by an unregistered firm. It notes that registration is optional, and that non-registration affects rights under contracts. Rule 4(2) creates an outer time limit for intimations, but its consequences are not expressly stated. The judgment cites Kuriachan Chacko and Others v. Registrar of Firms, Thiruvananthapuram (2015) which upheld the rule’s validity and connected the time limit to the power under Section 71(2)(e); it also references the earlier O.Balanarayanan decision that was overruled. The Court ultimately holds that there is no bar to accepting late intimations, but late intimations cannot relate back to the event date; if within 15 days, the date of event is preserved; otherwise, effect is from the date of intimation. The Registrar is to record entries from the date of presentation.

Provisions of Law Cited

Rule 4(2) of Kerala Partnership (Registration of Firms) Rules, 1959Rule 4(1) of Kerala Partnership (Registration of Firms) Rules, 1959Section 71(2)(e) of the Indian Partnership Act, 1932Section 58 of the Indian Partnership Act, 1932Section 59 of the Indian Partnership Act, 1932Section 60 of the Indian Partnership Act, 1932Section 61 of the Indian Partnership Act, 1932Section 62 of the Indian Partnership Act, 1932Section 63 of the Indian Partnership Act, 1932Section 69(2) of the Indian Partnership Act, 1932

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that the 15-day cutoff in Rule 4(2) should not extinguish their rights; delay in intimations should not nullify continuity of registration, especially where changes in firm constitution have occurred and require notification. They urge a purposive construction of Sections 58-63 and 69(2) to ensure the registration’s functional purpose and partner protections are not defeated by a rigid deadline. They rely on Kuriachan Chacko’s framework, advocating a date-back mechanism if intimations are within 15 days, so that actions within that period remain valid, and argue that non-registration should not penalize the partnership unduly when the intimation is timely or not harshly prejudicial to third parties.

Contentions of Respondents

The respondents defend Rule 4(2) as a valid exercise of the State’s power under Section 71(2)(e) to regulate filings. They argue that the 15-day period provides administrative certainty and prevents evasive or delayed record-keeping. While acknowledging no express penalty for late intimations, they contend late filings cannot relate back to the event date; however, registration can still be effected from the date of filing. They rely on Kuriachan Chacko to sustain the rule’s validity and emphasize the primacy of statutory provisions (Sections 58-63) and the objective of maintaining orderly records and enforcement against third parties where needed.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Kuriachan Chacko and Others v. Registrar of Firms, Thiruvananthapuram	2015 (4) KHC 491	Positive	Upheld the validity of Rule 4(2) and its outer 15-day limit, establishing the framework cited in the present decision.
O.Balanarayanan and Others v. The Registrar of Firms, Trivandrum and Another	AIR 1984 Ker. 20	Overruled	Earlier view that Rule 4(2) is ultra vires; later overruled by Kuriachan Chacko’s case.
Commissioner of Income Tax, Andhra Pradesh, Hyderabad v. M/s.Jayalakshmi Rice and Oil Mills Contractor Company	AIR 1971 SC 1015	Mentioned Only	Cited for the principle that the effective date of registration is the date of presentation of the application; used as background context rather than as binding authority for the outcome.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **FRIDAY, THE 6TH DAY OF APRIL 2018 / 16TH CHAITHRA, 1940** **WP(C).No. 4493 of 2018** **----------------------** ## **PETITIONER(S)** ## **-------------** - **1 M/S DEEPTHI GRANITE METALS,** - **BUILDING NO. 222, WARD III, THRIKKUR PANCHAYAT,** **THRISSUR-680314, REPRESENTED BY ITS MANAGING PARTNER, MR.JOSE P.O.** - **2 MRS. JOICY JOY, W/O. M.J.JOY, MANDAKATH HOUSE, VADAMA P.O.,** **THRISSUR-680732.** - **3 MR.JOSEPH PAULACHAN,** **S/O.JOSEPH, IRUMPAN HOUSE, POOVATHUSSERY, PARAKADAVU P.O., ERNAKULAM-683579.** - **4 MRS.MEERA VARGHESE,** - **D/O.VARGHESE P.O., PARAPPILLY HOUSE, MATTOOR, KALADY P.O., ERNAKULAM-683574.** - **5 MRS. ROSEMARY VARGHESE,** - **D/O.VARGHESE P.O.,PARAPPILLY HOUSE, MATTOOR, KALADY P.O., ERNAKULAM-683574.** - **6 MR.SAJU VARGHESE, S/O.P.V. VARGHESE,** - **PATHIKULANGARA HOUSE, THURUTHUKARA,** - **KIZHAKKAMBALAM P.O., ERNAKULAM-683562.** - **7 MR.BENNYSON K. J.,** - **S/O. JAMES K. J., KUREEKAL HOUSE, KALLUPALAM NAGAR,** **ANGAMALY P.O., ERNAKULAM-683572.** - **8 MR. SIJO GEORGE,** - **S/O. A. O. GEORGE, AZHCHENGADAN HOUSE, CHEVOOR P.O., THRISSUR DIST.-680027.** - **9 MRS. SONY THOMAS,** - **D/O. C.L.JOSE, CHUNGATH HOUSE, THOTTAKATTUKARA P.O.,** - **ALUVA, ERNAKULAM-682102.** - **10 MR.JOSE P.O.,** - **S/O. P. A.OUSEPH, PARAPPILLY HOUSE, THAINOTH ROAD, ALUVA P.O., ERNAKULAM-683101.** - **11 MRS.TESSY JOSE,** - **W/O. P.O. JOSE, PARAPPILLY HOUSE, THAINOTH ROAD, ALUVA P.O., ERNAKULAM-683101.** **WP(C).No. 4493 of 2018 (J) --------------------------** **12 MR.M.J.JOY,** **S/O. M. T. YOHANAN, MANDAKATH HOUSE, VADAMA P.O., MALA, THRISSUR DIST.-680732.** ## **13 MR. SABU THOMAS,** **S/O.THOMAS P. C., INJACHA PALATTY HOUSE, THABORE P.O., ANGAMALY, ERNAKULAM-683577.** **BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR** **SRI.P.GOPINATH** **SRI.K.JOHN MATHAI** **SRI.JOSON MANAVALAN** **SRI.KURYAN THOMAS** **SRI.PAULOSE C. ABRAHAM** ## **RESPONDENT(S):** **--------------** **1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. THE REGISTRAR OF FIRMS, OFFICE OF THE INSPECTOR GENERAL OF REGISTRATION, DEPARTMENT OF REGISTRATION, VANCHIYUR P.O., THIRUVANANTHAPURAM-695035.** **BY SRI K.V.SOHAN STATE ATONEY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-04-2018, ALONG WITH WPC NO.4505/2018 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K.V.** **WP(C).No. 4493 of 2018 (J) --------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** **EXHIBIT P1 A TRUE COPY OF THE TRUE EXTRACT OF THE FIRM NO. 1268/99 DATED 25.09.2013. EXHIBIT P2 A TRUE COPY OF THE DEED OF RETIREMENT DATED 31.12.2015. EXHIBIT P3 A TRUE COPY OF THE DEED OF PARTNERSHIP DATED 01.10.2012. EXHIBIT P4 A TRUE COPY OF THE DEED OF PARTNERSHIP DATED 01.01.2016. EXHIBIT P5 A TRUE COPY OF THE FORM V DATED 01.01.2016 ALONG WITH THE COVERING LETTER DATED 11.02.2017 OF THE AUTHORIZED AGENT. EXHIBIT P6 A TRUE COPY OF THE LETTER DATED 02.03.2017 NOTIFYING THE DEFECTS ISSUED BY THE 2ND RESPONDENT.** **RESPONDENTS EXHIBITS: NIL ---------------------** **/TRUE COPY/** **K.V. P.S.TO JUDGE 11.04.2018** “CR” ## **A.MUHAMED MUSTAQUE, J.** _**********************************************************************_ W.P.(C) Nos.4493 & 4505 of 2018 _**********************************************************************_ Dated this the 6[th] day of April, 2018 ## JUDGMENT These writ petitions are filed by two reconstituted partnership firms along with their partners seeking a direction to the Registrar of Firms to record the change in the constitution of the firms. Admittedly, the change of reconstituted firms were intimated to the Registrar after 15 days period. Rule 4(2) of the Kerala Partnership (Registration of Firms) Rules, 1959 (for short, the 'Rules') mandates such intimation to be given within 15 days from the date of reconstitution. The Division Bench of this Court in Kuriachan Chacko and Others v. Registrar of Firms, Thiruvananthapuram [2015 (4) KHC 491 ] after adverting to Rule 4 as above, in a challenge regarding the validity of the Rule upheld its validity and observed that such prescription of outer limit under the W.P.(C) Nos. 4493 &4505 of 2018 2 Rule is based on the source of power referable under Section 71 of the Indian Partnership Act, 1932 (for short, the 'Act'). Under Section 71(2)(e), the State Government is having power to regulate the filing of documents received by the Registrar. In fact, the learned Single Judge of this Court in O.Balanarayanan and Others v. The Registrar of Firms, Trivandrum and Anothe r [AIR 1984 Ker. 20] held that the State Government cannot make a rule prescribing a rigid time limit and Rule 4(2) is ultra vires the powers of the State Government under Section 71(2) of the Act. That decision was overruled in Kuriachan Chacko 's case (supra). 2. However, the Division Bench was silent as to the consequence that is to be followed if an application is filed out of time. Therefore, the question arises on the legal effect of an intimation given after the period of 15 days as referred under Rule 4(2) of the Rules. For this, it is necessary to refer various W.P.(C) Nos. 4493 &4505 of 2018 3 provisions of the Act. 3. The registration of a partnership firm is not compulsory and it is only optional. Section 58 of Chapter VII states about the application for registration and procedure for registration, which states that the registration of a firm will be effected at any time by sending by post or delivering to the Registrar of the area in which such business firm is situated or proposed to be situated. Section 59 states that the Registrar on being satisfied with the compliance of Section 58 shall record and make an entry of the statement in the register called the Register of Firms. The Apex Court in Commissioner of Income Tax, Andhra Pradesh, Hyderabad v. M/s.Jayalakshmi Rice and Oil Mills Contractor Company [AIR 1971 SC 1015] opined that the effective date of registration is the date on which the application was presented. Therefore, even if the partnership firm is formed on a date W.P.(C) Nos. 4493 &4505 of 2018 4 anterior to the date on which it was presented, the effective date of registration is the date on which such application was presented before the Registrar. 4. Rule 4(1) refers to the forms of intimations and notices to be given under Sections 61, 62 and 63 of the Act. Section 61 refers to noting of closing and opening of branches. Section 62 refers to noting of changes in names and addresses of partners. Section 63 refers to the recording of changes in and dissolution of a firm. Rule 4(2) also refers to the intimations and notices to be given under Section 60 as well. Rule 60 refers to the recording of alterations in firm name and principal place of business. It mandates that such intimation shall be sent or given to the Registrar together with fees within 15 days from the date of occurrence of such event related to any of the statutory provisions as above. W.P.(C) Nos. 4493 &4505 of 2018 5 5. The problem presented in these writ petitions is on the legal consequence of notices and intimations given after 15 days. Rule 4(2) does not state that if intimation is not given within 15 days, such intimation will have to be rejected. Since no consequences are referred, it cannot be stated that the prescription of the outer limit of 15 days is mandatory. However, the court cannot also ignore the purpose of fixation of 15 days outer limit. Certainly, the rule making authority prescribed such outer limit for certain purposes. In this regard, it is appropriate to refer Section 69 of the Act. Section 69 of the Act explains the effect of non-registration. Section 69(2) states about the right of enforcement arising out of partnership contract and explains that no right arising out of contract can be enforced by a partner against the firm, if the firm is not registered. Section 69(2) will give some light on the impact of W.P.(C) Nos. 4493 &4505 of 2018 6 the outer limit prescribed under Rule 4(2). Section 69(2) reads as follows: “No suits to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm.” 6. On a harmonious reading of Section 69 with Rule 4(2), it can be seen that if the reconstitution of the firm or any other event as referred under Sections 60, 61, 62 and 63 is intimated within 15 days, that will relate back for validation from the date on which such event took place and continuity of the registration could be enjoyed without any break. However, if the intimation is given after 15 days, the effective date of intimation would come into effect only from the date on which such intimation is W.P.(C) Nos. 4493 &4505 of 2018 7 given. If the Rules are read in the light of the substantive provisions under the Act as referable under Sections 58 and 59, this is the only possible reconciliation between the Act and the Rules to make the very purpose of the registration as workable. 7. Therefore, this Court has to hold that there is no bar for the Registrar in accepting an intimation given under Rule 4(2) of the Rules after 15 days. However, the event, which is the subject matter of such intimation is given after 15 days, it cannot relate back to the date on which the event took place and it will be given only from a date on which such intimation was given. If the event is intimated within 15 days, that will relate back the date on which the event took place and all actions of the firm within that period would be saved. However, if the reconstitution of the firm is not intimated within 15 days, they cannot have the benefit of registration unless and until that is intimated to the W.P.(C) Nos. 4493 &4505 of 2018 8 Registrar and it will be given effect only from the date on which such intimation is given. 8. In view of the Division Bench judgment of this Court in Kuriachan Chacko 's case (supra), the challenge laid by the petitioners as against the Rule 4(2) must fail. The Registrar shall make necessary entry regarding intimation by giving effect to such entry from the date on which it was presented before the Registrar. The writ petitions are disposed of as above. **Sd/-** **A.MUHAMED MUSTAQUE, JUDGE** ln