Plz help-gcl

A  and B agree orally to carry on a partnership business at will and commence business also. After one year A requests B to execute a formal partnership in writing which B refuses. Can A get specific performance in this case?

Ans: Yes A can get specific performance. As per section 14(3) of the Specific Relief Act, 1963, where the suit is for execution of formal deed of partnership, the parties having commenced to carry on the business of the partnership.

 Sohan is tried summarily by the metropolitan magistrate on the charge of committing theft and is sentenced to undergo imprisonment for a period of four moths. Can Sohan challenge the Decision? If so, on what grounds?

Ans: Under Section 260 of the Criminal Procedure Code, 1973, a Chief Judicial Magistrate has been authorized to try summarily any one or all the offences stipulated therein. The offences stipulated under Section 260 of the Code inter alia include theft under Section 379, 380 or 381 of the Indian Penal Code where the value of the property stolen does not exceed two hundred rupees.


Therefore, Sohan can challenge the decision of the Chief Judicial Magistrate under Section 262(2) of the Cr. P.C.

Please Correct me if I am wrong

Answer to a:

           As per Section 14 (1) of Specific Reliefs Act, 1963 the following contracts are not specifically enforceable, namely:(a) a contract for the non- performance of which compensation in money is an adequate relief; (b) a contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms; (c) a contract which is in its nature determinable; (d) a contract the performance of which involves the performance of a continuous duty which the court cannot supervise.

Section 14 (3) (b) (i) of the same Act says that: Notwithstanding anything contained in clause (a) or clause (c) or clause (d) of sub-section (1), the court may enforce specific performance in the following cases:

(b) where the suit is for, (i) the execution of a formal deed of partnership, the parties having commenced to carry on the business of the partnership;

In the present case also the suit is for the execution of a formal deed of partnership, where the partners have commenced the business of partnership. Hence A can get specific performance under the above provisions of Specific Reliefs Act, 1963.

Answer to b:

        Under Section 260 of the Criminal Procedure Code, 1973, any Chief Judicial Magistrate or any Metropolitan Magistrate or any Magistrate of the first class specially empowered in this behalf by the High Court, has been authorized to try summarily any one or all the offences stipulated therein. The offences stipulated under Section 260 (1) (ii) of the Code inter alia include theft under Section 379, 380 or 381 of the Indian Penal Code where the value of the property stolen does not exceed two hundred rupees. As per Code of Civil Procedure section 262(2) "No sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under Chapter XXI dealing with Summary Trials.

On the basis of above it can be concluded that:

a.     Metropolitan Magistrate had proper authority to summarily try the case.

b.     The judgement passed was ultra vires the provisions contained u/s 260 of CrPC, 1973, which is a valid ground to challange the decision. Hence if Sohan challanges this decision, he will succeed.

Though the case would be different if the imprisonment was for a period of 3 months, as no appeal lies where imprisonment ordered by a Metropolitan Judge is for a period not exceeding 3 months or a fine upto Rs.200/- or both.

Answer to c:

           Clause 10 of Chapter II of Transfer of Property Act, 1882 states provisions relating to condition restraining alienation of Property, wherein it is clearly given that where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him.

The conditions provided in the Deed of Partition that if any of the sons wanted to sell his shares, he shall sell it to one of his brother only and not to any stranger and that the consideration for that share shall be Rs.1000 only is a condition restraining alienation of Property and hence void.

answer to d:

          Part II (5) of The Limitations Act, 1963 states the provisions for extension of prescribed period in certain cases. Wherein it is said that any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Though it is not mentioned anywhere what amounts to sufficient cause.

Explanation.-The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.

In our case as the Appellant was sentenced to rigorous imprisonment for two months which seems to be a valid ground for condonation of delay in filing appeal. Hence the court will be justified in extending the period of limitation in this case.