Resolution can be passed by firm authorising your wife as managing partner of firm to give evidence on behalf of the firm
it should suffice
Authorization to partner for appearing in court case
Dear Sir/Madam, My father-in-law own a proprietorship firm which is 38 years old. later in 2019, it was reconstituted as partnership from with my wife as managing partner (49%) and my father in law with (51%) due to his age and health concerns as well mainly family reasons. In 2018, my father filed a suit for declaration of landed property which was purchased by his brother on their name using the firm's money when he was out of country taking his softness and ill heath as advantage which they accepted already in another case filed by them using forged agreement that is already dismissed. Now, the suit has come to trial and it is in our favour as the respondents have them self-admitted in pleadings it was purchased using the firm’s funds My question is: as my father in law heath is not good and may not be able to get in box and after chief affidavit for the cross. So, our advocate is advising to get this done by my wife who is well acquainted with the facts and she is also now managing partner from 2019. Would a resolution on the firm’s letter heard by signing of both partners authorizing my wife to appear on behalf of firm for the case would suffice or any other better way of taking forward by amending partnership deed or any other alternative for the needful there.. Kindly provide your expert advises – highly appreciated. Thank you, Anil
Asked 1 year ago in Business Law
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13 Answers
Yes resolution will do along with minutes if it’s a private limited co. for form it’s authority letter
The firm can authorise your wife to represent the firm in the court cases by a resolution passed to this effect.
Whereas if your father in law had already let in his witness chief evidence by an affidavit, then he only can be cross examined and not your wife.
The firm has authorised her to appear on behalf of the firm, the firm cannot authorise her answer during the depose evidence in cross examination for the chief examination already been let in by another person as PW1.
If the PW1 is alive but unable to attend court for cross examination then the court may appoint an advocate or court commissioner .to oversee and record the cross examination at the residence of the incapacitated witness at a time and schedule fixed by court in this regard.
Firm resolution. They can authorize any third person also by way of POA.
- The firm can appoint your wife as representative (AR) for deposing and appearing before the court in the said case.
- However, she cannot be cross in evidence on the ground of chief affidavit filed by your father-in- law.
- She will have to file an affidavit for the evidence after stating that she is acquainted with all the facts of the case .
- Your lawyer should move an application before the court for dropping the evidence of father-in- law and substituted your wife as PW1.
Your father in law has filed case in individual capacity so partnership cannot be involved in the case. As fund of firm was used so merely on this ground case does not seem to have been filed by partnership firm, hence, your wife can not depose on behalf of firm being partner of the firm. A local commissioner can be appointed by court to take evidence of your father in law. Your father in law can also appoint your wife as his special power of attorney to depose on his behalf in the case. You wife can contest case in the capacity of partner of firm as case is not filed by firm but was filed by father in law in his personal capacity. No resolution would be effective nor would be of any help. Further, resolution cannot be in the manner as suggested in query.
Dear Client,
The company has the ability to grant authorization for your wife to act as its representative in legal proceedings through a passed resolution.
However, if your father-in-law has already presented his main evidence through a sworn affidavit, only he can undergo cross-examination, and your wife cannot.
Although the company has empowered her to appear on its behalf, she cannot address questions during the deposition's cross-examination phase, as another individual (PW1) has already provided their primary testimony.
In instances where PW1 is alive but unable to attend court for cross-examination, the court has the option to appoint an advocate or court commissioner. This individual would oversee and document the cross-examination process at the incapacitated witness's residence, according to a schedule set by the court.
Dear Sir(s), Thank you all very much for your kind advises. Just to clarify, my father in law DID NOT file any Chief Affidavit yet. the case reached this stage now. Hence, we want to make sure to do it carefully by taking my wife who is the managing partner of the firm and she will file the Chief Affidavit and for Cross Examination as she is well acquainted with the facts. Also, as I stated, the respondents have already ADMITTED in court pleadings / petition that the property was purchased using the FIRM's FUNDS on their names during my father in laws travel out of India. And we have filed the case for declaration of that property which belong to the Firm. We have drafted a resolution / Authorisation to use when filing the Chief Affidavit by my wife. Lastly, please let us know if you feel we take any additional measures if required for the same. I once again thank you all for the humble support on this clarification. Kind regards, Anil
Asked 1 year ago
If case has been filed by partnership firm only then your wife being partner can obtain authorisation from firm and can depose in the case. Mere use of firm money or fund does not confer any right nor power to your wife to depose in the capacity of firm. However father in law can appoint her as his special attorney to depose in the case.
Your wife as managing partner of the firm can give evidence in case
resolution passed by firm authorising wife to give evidence should suffice
Best of luck
Dear Client,
Complete Documentation: Ensure that all documentation, including the resolution or authorization, is accurately and completely drafted. It should clearly state the purpose, scope, and authorization for your wife to file the Chief Affidavit and represent the firm in the case.
Partnership Deed: As you mentioned, the partnership deed may need to be reviewed to ensure that it allows for one partner to represent the firm in legal matters. If necessary, consider amending the partnership deed to explicitly grant such authority.
Your approach of having your wife, who is the managing partner and familiar with the facts, represent the firm in the case appears reasonable.
If the chief examination was not deposed by your father in law, then on the basis of the authorization by the company, our wife can let in the witness evidence in chief and can also let in evidence during cross examination
- Since there is no affidavit filed by him , then your lawyer can move an application before the court for allowing AR to depose on behalf of the firm
- Further, you wife as an AR can file her evidence by way of affidavit for deposing before the court in evidence.