- (1.) THIS Mandamus-Appeal is at the instance of the Registrar of Firms, Societies and Non-Trading Corporations, West Bengal, and is directed against an order dated 28th October, 2009 passed by a learned Single Judge of this Court by which His Lordship disposed of the writ-application by directing the appellants to grant registration of the partnership firm of the writ-petitioners within a fortnight from the petitioners' compliance with the requisite formalities. Being dissatisfied, the Registrar of Firms, Societies and Non-Trading corporations, West Bengal, has come up with the present appeal. It appears that the writ-petitioners prayed for a direction upon the appellant to register their partnership firm, named, "sri Hari Trading Company" on the allegation that in spite of complying with all the formalities required under law, the registering Authority was not granting registration of the firm which was desirous of carrying on business in foreign liquor as wholesaler. At the time of hearing of the application before the learned Single Judge, it was argued on behalf of the appellants that under the provision of Section 4 of the Indian partnership Act, 1932 unless a firm had started carrying on business, the same could not be registered and in the present case the undisputed position being that the writ-petitioners have not yet obtained any valid licence from the concerned authority to start the business, no question of registration of the firm arose.
(2.) THE learned Single Judge, however, overruled such contention on the ground that law did not require, that in order to register a partnership agreed to by the parties, the same must actually carry on business.
(3.) MR. Mukhopadhyay, the learned Junior Standing Counsel appearing on behalf of the appellants, vehemently contended before us that the learned Single Judge erred in law in passing direction for registration of the firm notwithstanding the fact that the formalities required under Section 4 of the Indian partnership Act were not complied with. Mr. Mukhopadhyay strongly relied upon the phrase "carried on", appearing in Section 4 of the Indian Partnership Act, and contends that so long the business is not actually carried on, there cannot be any valid partnership in the eye of law. Apart from the aforesaid fact, Mr. Mukhopadhyay also draws our attention to a term of the partnership deed which indicates that the said deed would be effective from the date of grant of licence by the Government and according to him, in this case, the licence not having been granted, the deed is not inexistence in the eye of law and, therefore, no question of registration arises. In support of his contention, Mr. Mukhopadhyay relies upon the decisions of the Supreme Court in case of State of punjab vs. Bajaj Electricals Limited reported in AIR 1968 SC 739 and in the case of Bengal and Assam Investors Limited vs. Commissioner of Income Tax, West bengal, Calcutta reported in AIR 1966 SC 1514.;