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Transcript of ce - Zaiwalla€¦ · President-CRISP, NGO working for Child Rights Editor-in-Chief PBA Srinivasan...
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27 IN-DEPTHGoods & Services Tax (GST): So Close Yet So Far With the original date for its introduction in having been missed
due to various reasons, all eyes are on its promised new date of
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37 IN-FOCUSMisleading Ads and Absence of LawDespite several legislations, there is ad galore in misleading
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56 SNEAK PEEKDecriminalization of IPC Section 309Suicide is a complex issue and therefore suicide prevention efforts
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E X P E R T P A N E L
Prof. Madabhushi Sridhar NALSAR University of Law, Hyderabad
H. V. Ramadas Advocate, Karnataka High Court
Kumar V. Jahgirdar President-CRISP, NGO working for
Child Rights
Editor-in-Chief
PBA Srinivasan contents
A D V I S O R Y B O A R D
Dr. Justice AR Lakshmanan Former Chairman, Law Commission
of India
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Justice R. S. Sodhi Retired Delhi High Court Judge
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REGULARS
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90 TRIVIA
48S. RAMASWAMYEVP-Group General
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& President, ICCA
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Freedom & Law in TheAdministration of Justice
Is it Time for Next Reforms from The FinanceMinister?
India’s Taxing Woes and FDI
The present taxation is beset with problems which is not suited to
more benevolent foreign investment regime in India. With India’s
fortunes pegged to investments from foreign investors, many
changes in the FDI policy are needed to bring the transition.
expertspeak
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LAWRENCE JACOBSO
SAURABH BHAGOTRAZaiwalla & Co.
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February 2015 | Lex WITNESS | 33A Lex Witness Privileged Partners Initiative
n Lawrence Jacobson and
Saurabh Bhagotra
n England a controversial
issue that arises from time
to time is whether a
partner in a general
partnership causes a
dissolution of the partnership by accepting
a repudiatory breach by one or more of his
co-partners, without the intervention of the
Court.
Section 35(d) of the Partnership Act of
1890 (PA) provides that on an application
by a partner the court has a discretionary
power to order a dissolution where the
other partner “wilfully or persistently
commits a breach of the partnership
agreement…”. That the PA is not an
exhaustive code of partnership law, is
reflected in the provisions of section 46 of
the PA: “The rules of equity and of common
law applicable to partnership shall continue
in force except so far as they are
inconsistent with the express provisions of
this Act.”
There now appear to be two schools of
thought on the issue. The line of cases led
by the Court of Appeal in Hurst v Bryk
[1999] Ch 1 ,which has never been
overturned, supports the proposition that
the contractual doctrine applies without the
intervention of the court whereas the first
instance cases of Mullins v Laughton
[2003] Ch 250 and Golstein v Bishop
[2014] Ch 131 take the view, based on the
obiter dicta of Lord Millett in Hurst v Bryk
[2002] 1 AC 185 HL, that only a decree by
a court under section 35(d) of the PA will
cause a dissolution of the partnership. In
our view the former proposition should
prevail on the basis of stare decisis and the
commercial relationship between the
partners.
In India, partnership issues are primarily
but not exhaustively dealt with by the
Indian Partnership Act of 1932 (IPA).
Section 74(f) of the IPA provides that
nothing in that Act shall affect any rule of
law that is not inconsistent with the Act.
Repudiatory breach is provided for in
section 39 of the Indian Contract Act 1872
(ICA). Section 44(d) of the IPA is framed in
similar terms to section 35(d) of the (PA) to
the effect that the court has a discretion to
dissolve a partnership. However, in
construing sections 74 of the IPA and 39 of
the ICA it is arguable that a partner can
dissolve a partnership by accepting his co-
partner’s repudiatory breach, without the
intervention of the court.
There would be no inconsistency between
sections 39 of the ICA and 44(d) of the IPA
because a repudiatory breach is by nature
much more serious than that envisaged in
sections 44(d) of the IPA and 35(d) of the
PA and is a legal right.
I
ZAIWALLA & CO.Chancery House, 53/64 Chancery LaneLondonWC2A 1QS, DX: 42 Chancery Lane
expertspeak
Lawrence Jacobson is an in-house
Barrister and Saurabh Bhagotra is a
lawyer at Zaiwalla & Co, specialising in
domestic and international commercial
dispute resolution.
w
Saurabh Bhagotra
Lawrence Jacobson
A Contractual Analysis on WhetherContractual Doctrine CausesDissolution of Partnership at Will
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