Limits on Agency of partners

 

As stated above, every partner is an agent of the other partners and has implied authority to do all acts and things necessary for the purpose of carrying on business of the firm. But such an implied authority does not empower a partner to 

(a) submit a dispute relating to the business of the firm to arbitration or 
(b) open a banking account on behalf of the firm in his own name, 
(c) compromise or relinquish any claim or a portion of a claim by the firm, 
(d) withdraw a suit or proceeding on behalf of the firm, 
(e) admit any liability in a suit or proceeding against the firm, 
(f) acquire immoveable property on behalf of the firm, 
(g) transfer any such property, or 
(h) enter into any partnership on behalf of the firm. 

These being the implied authorities they can be modified by express provisions in the partnership deed.

As stated above, the partnership is not a legal entity by itself, but only an association of persons and the name of the firm is only a mode or compendious expression representing the partners. However, section 22 of the Act provides that in order to bind a firm, an act or instrument done or executed by a partner or other person on behalf of the firm shall be done or executed in the firm name or in any other manner expressing or implying the Intention to bind the firm. This means that in order to bind the firm and all the partners thereof every act must be done in the name of the firm or expressly on behalf of the Firm. Therefore, when a contract is entered into for and on behalf of a partnership firm. It is desirable to make the firm by its one or more partners as a party or one or more partners can be made a party in his or their names but as partners of their firm. A mere description of the signatory that he is partner of a firm may not be sufficient to bind the firm. But here a distinction should be made between an ordinary contract and a deed of transfer of any immoveable property. In a case where an immoveable property is to be acquired by purchase or lease or otherwise, it is necessary to make all or some of the partners as parties and not the firm in its name. A firm is not a legal person and a transfer can be only by or in favour of a legal orjuridical person as provided in S. 5 of the Transfer of Property Act. A partnership firm by its name is not a juristic person like a corporate body. It is the partners who are as a body of persons juristic persons .

     It is not necessary to deal with the provisions of the Partnership Act contained in sections 20 to 30 as they are not relevant so far as drafting of a deed of partnership and other incidental documents, is concerned. Those provisions are also binding upon any firm as they are not subject to contract to the contrary

 

Copyright©Vakilno1.com Archer Infotech Pvt. Ltd.All rights reserved