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27 IN-DEPTHGoods & Services Tax (GST): So Close Yet So Far With the original date for its introduction in having been missed

due to various reasons, all eyes are on its promised new date of

April 1, 2016

37 IN-FOCUSMisleading Ads and Absence of LawDespite several legislations, there is ad galore in misleading

consumers. What needs to be done so that the practice of

misleading people to sell products is thwarted?

56 SNEAK PEEKDecriminalization of IPC Section 309Suicide is a complex issue and therefore suicide prevention efforts

require coordination and collaboration among multiple sectors of

society. The present decision of the government to decriminalize

attempt to suicide will go a long away in moving forward.

72 EDUCATION SPECIALFree and Fair Trial in the CommunicationAgeAny institution is liable to be abused if it exceeds its legitimate

jurisdiction and functions. In this digital age, the innocents may be

condemned for no reason or those who are guilty may not get a fair

trial and may get a higher sentence than they deserved.

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E X P E R T P A N E L

Prof. Madabhushi Sridhar NALSAR University of Law, Hyderabad

H. V. Ramadas Advocate, Karnataka High Court

Kumar V. Jahgirdar President-CRISP, NGO working for

Child Rights

Editor-in-Chief

PBA Srinivasan contents

A D V I S O R Y B O A R D

Dr. Justice AR Lakshmanan Former Chairman, Law Commission

of India

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Justice R. S. Sodhi Retired Delhi High Court Judge

Lalit Bhasin President - Society of Indian Law Firms

Badrinath DurvasulaVP & Head Legal

Larsen & Toubro Limited

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REGULARS

CUTTING EDGE

PAGE 08

62 SNIPPETS

78 JOBS ARENA

80 CAPSULES

83 COFFEE BREAK

84 BUZZ SQUARE

89 EVENT CALENDAR

90 TRIVIA

48S. RAMASWAMYEVP-Group General

Counsel, Escorts Limited

& President, ICCA

counselcorner

Freedom & Law in TheAdministration of Justice

Is it Time for Next Reforms from The FinanceMinister?

India’s Taxing Woes and FDI

The present taxation is beset with problems which is not suited to

more benevolent foreign investment regime in India. With India’s

fortunes pegged to investments from foreign investors, many

changes in the FDI policy are needed to bring the transition.

expertspeak

33

LAWRENCE JACOBSO

SAURABH BHAGOTRAZaiwalla & Co.

Page 07_Layout 1 2/12/2015 6:39 PM Page 7

February 2015 | Lex WITNESS | 33A Lex Witness Privileged Partners Initiative

n Lawrence Jacobson and

Saurabh Bhagotra

n England a controversial

issue that arises from time

to time is whether a

partner in a general

partnership causes a

dissolution of the partnership by accepting

a repudiatory breach by one or more of his

co-partners, without the intervention of the

Court.

Section 35(d) of the Partnership Act of

1890 (PA) provides that on an application

by a partner the court has a discretionary

power to order a dissolution where the

other partner “wilfully or persistently

commits a breach of the partnership

agreement…”. That the PA is not an

exhaustive code of partnership law, is

reflected in the provisions of section 46 of

the PA: “The rules of equity and of common

law applicable to partnership shall continue

in force except so far as they are

inconsistent with the express provisions of

this Act.”

There now appear to be two schools of

thought on the issue. The line of cases led

by the Court of Appeal in Hurst v Bryk

[1999] Ch 1 ,which has never been

overturned, supports the proposition that

the contractual doctrine applies without the

intervention of the court whereas the first

instance cases of Mullins v Laughton

[2003] Ch 250 and Golstein v Bishop

[2014] Ch 131 take the view, based on the

obiter dicta of Lord Millett in Hurst v Bryk

[2002] 1 AC 185 HL, that only a decree by

a court under section 35(d) of the PA will

cause a dissolution of the partnership. In

our view the former proposition should

prevail on the basis of stare decisis and the

commercial relationship between the

partners.

In India, partnership issues are primarily

but not exhaustively dealt with by the

Indian Partnership Act of 1932 (IPA).

Section 74(f) of the IPA provides that

nothing in that Act shall affect any rule of

law that is not inconsistent with the Act.

Repudiatory breach is provided for in

section 39 of the Indian Contract Act 1872

(ICA). Section 44(d) of the IPA is framed in

similar terms to section 35(d) of the (PA) to

the effect that the court has a discretion to

dissolve a partnership. However, in

construing sections 74 of the IPA and 39 of

the ICA it is arguable that a partner can

dissolve a partnership by accepting his co-

partner’s repudiatory breach, without the

intervention of the court.

There would be no inconsistency between

sections 39 of the ICA and 44(d) of the IPA

because a repudiatory breach is by nature

much more serious than that envisaged in

sections 44(d) of the IPA and 35(d) of the

PA and is a legal right.

I

ZAIWALLA & CO.Chancery House, 53/64 Chancery LaneLondonWC2A 1QS, DX: 42 Chancery Lane

expertspeak

Lawrence Jacobson is an in-house

Barrister and Saurabh Bhagotra is a

lawyer at Zaiwalla & Co, specialising in

domestic and international commercial

dispute resolution.

w

Saurabh Bhagotra

Lawrence Jacobson

A Contractual Analysis on WhetherContractual Doctrine CausesDissolution of Partnership at Will

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