TMI Blog1948 (2) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... h of an agreement of 7th December 1907, to employ the firm of Kotibhasker Amin Co., of which the appellant claimed to be a member, as managing agents of the company. 3. The claim arises in this way. The company was formed in the year 1907 and under Clause 6 of the Memorandum of Association it was provided that the members who then constituted or who might thereafter constitute the firm of Messrs. Kotibhasker Amin Co. were thereby appointed secretaries, treasurers and agents of the company upon the terms contained in the agreement annexed to the Articles of Association, and it; was expressly provided that in consideration of the services rendered by them in promoting the company, the appointment of the said firm as secretaries, treasu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g on to the best advantage the business of the said company so long as the said company and the said firm should continue to carry on their respective business at the remuneration upon the terms and subject to the conditions thereinafter mentioned; (Clause 2) - That in consideration of the agreement hereinbefore contained on the part of the said firm, and in further consideration of the said firm having promoted the said company, the company thereby promised and agreed with the said firm and its members or member for the time being, that the said firm should be employed as,, and should be the secretaries, treasurers and agents of the said company as long as the said firm and the said company should exist and continue to carry on the busines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On 5th October 1939, the said B.D. Amin assigned his share in the firm to his son, respondent 2. It is not disputed that on the occasion of any change in the constitution of the firm notice of the fact was given to the company who recorded such fact in its minutes, but it is not alleged that on any of these occasions an express fresh agreement was entered into by the company with the reconstituted firm as contemplated in Clause 2 of the managing agents' agreement. 7. On 20th November 1939, the company, by their attorneys, wrote to the firm alleging that since 5th October 1939, when B.D. Amin, the only remaining original partner, assigned his share in the firm the firm with which the company had entered into the agreement of 7th Dece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the entity continues so long as the firm exists and continues to carry on its business. It is true that the Indian Partnership Act goes further than the English Partner, ship Act, 1890, in recognising that a firm may possess a personality distinct from the persons constituting it; the law in India in that respect being more in accordance with the law of Scotland, than with that of England. But the fact that a firm possesses a distinct personality does not involve that the personality continues unchanged so long as the business of the firm continues. The Indian Act, like the English Act, avoids making a firm a corporate body enjoying the right of perpetual succession. The agreement of 7th December 1907 was made between the company and f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on Section 87B(c), Companies Act. That sub-clause was introduced into the Companies Act by the amending Act of 1986. The sub-clause renders a transfer of his office by a managing agent void unless approved by the company in general meeting, but there is it proviso removing from the operation of the sub-clause any change in the partners of a managing agent's firm, so long as one of. the original partners continues to be a partner in such firm, and original partners are defined to mean, in the case of managing agents appointed before the commencement of the amending Act, 1936, partners who were partners at the date of the commencement of the Act. So for the purposes of the proviso, the appellant was to be regarded as an original part ..... X X X X Extracts X X X X X X X X Extracts X X X X
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