The Calcutta High Court (Jalpaiguri Bench) has asserted that where the requirements under Section 58 of the Indian Partnership Act, 1932 have been duly complied with, then the Registrar is under a statutory obligation under Section 59 to register the partnership firm, and cannot insist upon production and/or submission of a trade licence as an additional condition, particularly in the case of a firm formed for carrying on the professional practice of law. The Court held that Section 58 does not require submission of a trade licence, and any guideline imposing such requirement cannot override or travel beyond the parent statute.
Accordingly, the Court directed the Registrar, Office of the Registrar of Firms, Societies and Non-Trading Corporations, West Bengal, to process the petitioner’s application for registration in respect of M/s Pinava Legal, without insisting upon production and/or submission of trade licence of the firm.
A Single Judge Bench of Justice Bivas Pattanayak identified the only issue for consideration as whether the Registrar was justified in refusing to register M/s Pinava Legal on the ground of non-production/non-submission of trade licence. Upon reproducing Section 58 of the Indian Partnership Act, 1932, the Bench observed that the provision lays down the mode of making an application for registration of a partnership firm and requires a statement in the prescribed form, accompanied by the prescribed fee, containing the particulars set out in clauses (a) to (f).
The Bench recorded that there was no dispute that the firm had complied with Section 58, and further observed that Section 58 does not provide for production/submission of a trade licence. It noted that Section 59 provides that where the Registrar is satisfied that Section 58 has been duly complied with, he shall record an entry in the Register of Firms and file the statement, thereby casting a duty upon the Registrar to register the firm.
The Bench also observed that no rule under the Bengal Partnership Rules, 1933 had been placed showing a mandatory requirement of submission of a trade licence for registration of a partnership firm formed for the purpose of carrying legal profession, and that even if guidelines provide for such a requirement, they must be in accord with the parent statute and cannot travel beyond it.
Briefly, the petitioner, an advocate and partner of M/s Pinava Legal, an unregistered partnership firm of advocates, sought a direction upon the respondent authorities, particularly the Registrar, Office of the Registrar of Firms, Societies and Non-Trading Corporations, West Bengal, to accept, process and register Application No. APP-022334 without insisting upon a trade licence, and also sought a declaration that insistence upon production of a trade licence as a precondition for registration of a partnership firm consisting exclusively of advocates carrying on the profession of law is arbitrary, unconstitutional, ultra vires the Indian Partnership Act, 1932, and contrary to the Advocates Act, 1961 and the Bar Council of India Rules.
The petitioner contended that all preliminary objections had been complied with except the requirement to submit a trade licence, and argued that Section 58 of the Indian Partnership Act, 1932 does not require submission of a trade licence and that, once Section 58 is complied with, Section 59 obliges the Registrar to register the firm. The State relied on registration guidelines requiring, inter alia, initial and current trade licence, though it conceded that a lawyer’s office or a firm of lawyers is not a “commercial establishment.”
