LIMITED LIABILITY PARTNERSHIP

 

 

 

Limited Liability Partnership Act, 2008

 

[Act no. 6 of 2009], dated 7-1-2009

 

 

An Act to make provisions for the formation and regulation of limited liability partnerships and for matters connected there­with or incidental thereto.

BE it enacted by Parliament in the Fifty-ninth Year of the Repub­lic of India as follows :—

Chapter I

Preliminary

Short title, extent and commencement.

1. (1) This Act may be called the Limited Liability Partnership Act, 2008.

(2) It extends to the whole of India.

(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint :

Provided  that different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision.

Definitions.

2. (1) In this Act, unless the context otherwise requires,—

  (a)  “address”, in relation to a partner of a limited li­ability partnership, means—

   (i)  if an individual, his usual residential address; and

  (ii)  if a body corporate, the address of its registered office;

  (b)  “advocate” means an advocate as defined in clause (a) of sub-section (1) of section 2 of the Advocates Act, 1961 (25 of 1961);

  (c)  “Appellate Tribunal” means the National Company Law Appellate Tribunal constituted under sub-section (1) of section 10FR of the Companies Act, 1956 (1 of 1956);

  (d)  “body corporate” means a company as defined in section 3 of the Companies Act, 1956 (1 of 1956) and includes—

   (i)  a limited liability partnership registered under this Act;

  (ii)  a limited liability partnership incorporated outside India; and

(iii)  a company incorporated outside India,

but does not include—

   (i)  a corporation sole;

  (ii)  a co-operative society registered under any law for the time being in force; and

(iii)  any other body corporate (not being a company as defined in section 3 of the Companies Act, 1956 (1 of 1956) or a limited liability partnership as defined in this Act), which the Central Government may, by notification in the Official Gazette, specify in this behalf;

  (e)  “business” includes every trade, profession, service and occupation;

  (f)  “chartered accountant” means a chartered accountant as defined in clause (b) of sub-section (1) of section 2 of the Chartered Accountants Act, 1949 (38 of 1949) and who has obtained a certificate of practice under sub-section (1) of section 6 of that Act;

  (g)  “company secretary” means a company secretary as de­fined in clause (c) of sub-section (1) of section 2 of the Compa­ny Secretaries Act, 1980 (56 of 1980) and who has obtained a certificate of practice under sub-section (1) of section 6 of that Act;

  (h)  “cost accountant” means a cost accountant as defined in clause (b) of sub-section (1) of section 2 of the Cost and Works Accountants Act, 1959 (23 of 1959) and who has obtained a certif­icate of practice under sub-section (1) of section 6 of that Act;

   (i)  “Court”, with respect to any offence under this Act, means the Court having jurisdiction as per the provisions of section 77;

  (j)  “designated partner” means any partner designated as such pursuant to section 7;

  (k)  “entity” means any body corporate and includes, for the purposes of sections 18, 46, 47, 48, 49, 50, 52 and 53, a firm set-up under the Indian Partnership Act, 1932 (9 of 1932);

   (l)  “financial year”, in relation to a limited liability partnerships, means the period from the 1st day of April of a year to the 31st day of March of the following year :

        Provided that in the case of a limited liability partnership incorporated after the 30th day of September of a year, the financial year may end on the 31st day of March of the year next following that year;

(m)  “foreign limited liability partnership” means a limited liability partnership formed, incorporated or registered outside India which establishes a place of business within India;

  (n)  “limited liability partnership” means a partnership formed and registered under this Act;

  (o)  “limited liability partnership agreement” means any written agreement between the partners of the limited liability partnership or between the limited liability partnership and its partners which determines the mutual rights and duties of the partners and their rights and duties in relation to that limited liability partnership;

  (p)  “name”, in relation to a partner of a limited liability partnership, means—

   (i)  if an individual, his forename, middle name and sur­name; and

  (ii)  if a body corporate, its registered name;

  (q)  “partner”, in relation to a limited liability partner­ship, means any person who becomes a partner in the limited liability partnership in accordance with the limited liability partnership agreement;

  (r)  “prescribed” means prescribed by rules made under this Act;

  (s)  “Registrar” means a Registrar, or an Additional, a Joint, a Deputy or an Assistant Registrar, having the duty of registering companies under the Companies Act, 1956 (1 of 1956);

  (t)  “Schedule” means a Schedule to this Act;

  (u)  “Tribunal” means the National Company Law Tribunal constituted under sub-section (1) of section 10FB of the Compa­nies Act, 1956 (1 of 1956).

(2) Words and expressions used and not defined in this Act but defined in the Companies Act, 1956 (1 of 1956) shall have the meanings re­spectively assigned to them in that Act.

Chapter II

Nature of limited liability partnership

Limited liability partnership to be body corporate.

3. (1) A limited liability partnership is a body corporate formed and incorporated under this Act and is a legal entity separate from that of its partners.

(2) A limited liability partnership shall have perpetual succes­sion;

(3) Any change in the partners of a limited liability partnership shall not affect the existence, rights or liabilities of the limited liability partnership.

Non-applicability of the Indian Partnership Act, 1932.

4. Save as otherwise provided, the provisions of the Indian Partnership Act, 1932 (9 of 1932) shall not apply to a limited liability partnership.

Partners

5. Any individual or body corporate may be a partner in a limited liability partnership :

Provided  that an individual shall not be capable of becoming a partner of a limited liability partnership, if—

  (a)  he has been found to be of unsound mind by a Court of competent jurisdiction and the finding is in force;

  (b)  he is an undischarged insolvent; or

  (c)  he has applied to be adjudicated as an insolvent and his application is pending.

Minimum number of partners.

6. (1) Every limited liability partnership shall have at least two partners.

(2) If at any time the number of partners of a limited liability partnership is reduced below two and the limited liability part­nership carries on business for more than six months while the number is so reduced, the person, who is the only partner of the limited liability partnership during the time that it so carries on business after those six months and has the knowledge of the fact that it is carrying on business with him alone, shall be liable personally for the obligations of the limited liability partnership incurred during that period.

Designated partners.

7. (1) Every limited liability partnership shall have at least two designated partners who are individuals and at least one of them shall be a resident in India :

Provided that in case of a limited liability partnership in which all the partners are bodies corporate or in which one or more partners are individuals and bodies corporate, at least two individuals who are partners of such limited liability partner­ship or nominees of such bodies corporate shall act as designated partners.

Explanation.—For the purposes of this section, the term “resi­dent in India” means a person who has stayed in India for a period of not less than one hundred and eighty-two days during the immediately preceding one year.

(2) Subject to the provisions of sub-section (1),—

   (i)  if the incorporation document—

  (a)  specifies who are to be designated partners, such persons shall be designated partners on incorporation; or

  (b)  states that each of the partners from time to time of limited liability partnership is to be designated partner, every partner shall be a designated partner;

  (ii)  any partner may become a designated partner by and in accordance with the limited liability partnership agreement and a partner may cease to be a designated partner in accordance with limited liability partnership agreement.

(3) An individual shall not become a designated partner in any limited liability partnership unless he has given his prior consent to act as such to the limited liability partnership in such form and manner as may be prescribed.

(4) Every limited liability partnership shall file with the Registrar the particulars of every individual who has given his consent to act as designated partner in such form and manner as may be prescribed within thirty days of his appointment.

(5) An individual eligible to be a designated partner shall satisfy such conditions and requirements as may be prescribed.

(6) Every designated partner of a limited liability partnership shall obtain a Designated Partner Identification Number (DPIN) from the Central Government and the provisions of sections 266A to 266G (both inclusive) of the Companies Act, 1956 (1 of 1956) shall apply mutatis mutandis for the said purpose.

Liabilities of designated partners.

8. Unless expressly provided otherwise in this Act, a designated partner shall be—

  (a)  responsible for the doing of all acts, matters and things as are required to be done by the limited liability part­nership in respect of compliance of the provisions of this Act including filing of any document, return, statement and the like report pursuant to the provisions of this Act and as may be specified in the limited liability partnership agreement; and

  (b)  liable to all penalties imposed on the limited liabili­ty partnership for any contravention of those provisions.

Changes in designated partners.

9. A limited liability partnership may appoint a designated part­ner within thirty days of a vacancy arising for any reason and provisions of sub-section (4) and sub-section (5) of section 7 shall apply in respect of such new designated partner :

Provided that if no designated partner is appointed, or if at any time there is only one designated partner, each partner shall be deemed to be a designated partner.

Punishment for contravention of sections 7, 8 and 9.

10. (1) If the limited liability partnership contravenes the provisions of sub-section (1) of section 7, the limited liability partnership and its every partner shall be punishable with fine which shall not be less than ten thousand rupees but which may extend to five lakh rupees.

(2) If the limited liability partnership contravenes the provi­sions of sub-section (4) and sub-section (5) of section 7, sec­tion 8 or section 9, the limited liability partnership and its every partner shall be punishable with fine which shall not be less than ten thousand rupees but which may extend to one lakh rupees.

Chapter III

Incorporation of limited liability partnership and
matters inci­dental thereto

Incorporation document.

11. (1) For a limited liability partnership to be incorporated,—

  (a)  two or more persons associated for carrying on a lawful business with a view to profit shall subscribe their names to an incorporation document;

  (b)  the incorporation document shall be filed in such manner and with such fees, as may be prescribed with the Regis­trar of the State in which the registered office of the limited liability partnership is to be situated; and

  (c)  there shall be filed along with the incorporation document, a statement in the prescribed form, made by either an advocate, or a Company Secretary or a Chartered Accountant or a Cost Accountant, who is engaged in the formation of the limited liability partnership and by any one who subscribed his name to the incorporation document, that all the requirements of this Act and the rules made thereunder have been complied with, in respect of incorporation and matters precedent and incidental thereto.

(2) The incorporation document shall—

  (a)  be in a form as may be prescribed;

  (b)  state the name of the limited liability partnership;

  (c)  state the proposed business of the limited liability partnership;

  (d)  state the address of the registered office of the limited liability partnership;

  (e)  state the name and address of each of the persons who are to be partners of the limited liability partnership on incor­poration;

  (f)  state the name and address of the persons who are to be designated partners of the limited liability partnership on incorporation;

  (g)  contain such other information concerning the proposed limited liability partnership as may be prescribed.

(3) If a person makes a statement under clause (c) of sub-section (1) which he—

  (a)  knows to be false; or

  (b)  does not believe to be true,

shall be punishable with imprisonment for a term which may extend to two years and with fine which shall not be less than ten thousand rupees but which may extend to five lakh rupees.

Incorporation by registration.

12. (1) When the requirements imposed by clauses (b) and (c) of sub-section (1) of section 11 have been complied with, the Regis­trar shall retain the incorporation document and, unless the requirement imposed by clause (a) of that sub-section has not been complied with, he shall, within a period of fourteen days—

  (a)  register the incorporation document; and

  (b)  give a certificate that the limited liability partner­ship is incorporated by the name specified therein.

(2) The Registrar may accept the statement delivered under clause (c) of sub-section (1) of section 11 as sufficient evidence that the requirement imposed by clause (a) of that sub-section has been complied with.

(3) The certificate issued under clause (b) of sub-section (1) shall be signed by the Registrar and authenticated by his offi­cial seal.

(4) The certificate shall be conclusive evidence that the limited liability partnership is incorporated by the name specified therein.

Registered office of limited liability partnership and change therein.

13. (1) Every limited liability partnership shall have a regis­tered office to which all communications and notices may be addressed and where they shall be received.

(2) A document may be served on a limited liability partnership or a partner or designated partner thereof by sending it by post under a certificate of posting or by registered post or by any other manner, as may be prescribed, at the registered office and any other address specifically declared by the limited liability partnership for the purpose in such form and manner as may be prescribed.

(3) A limited liability partnership may change the place of its registered office and file the notice of such change with the Registrar in such form and manner and subject to such conditions as may be prescribed and any such change shall take effect only upon such filing.

(4) If the limited liability partnership contravenes any provi­sions of this section, the limited liability partnership and its every partner shall be punishable with fine which shall not be less than two thousand rupees but which may extend to twenty-five thousand rupees.

Effect of registration.

14. On registration, a limited liability partnership shall, by its name, be capable of—

  (a)  suing and being sued;

  (b)  acquiring, owning, holding and developing or disposing of property, whether movable or immovable, tangible or intangi­ble;

  (c)  having a common seal, if it decides to have one; and

  (d)  doing and suffering such other acts and things as bodies corporate may lawfully do and suffer.

Name.

15. (1) Every limited liability partnership shall have either the words “limited liability partnership” or the acronym “LLP” as the last words of its name.

(2) No limited liability partnership shall be registered by a name which, in the opinion of the Central Government is—

  (a)  undesirable; or

  (b)  identical or too nearly resembles to that of any other partnership firm or limited liability partnership or body corpo­rate or a registered trade mark, or a trade mark which is subject of an application for registration, of any other person under the Trade Marks Act, 1999 (47 of 1999).

Reservation of name.

16. (1) A person may apply in such form and manner and accompa­nied by such fee as may be prescribed to the Registrar for the reservation of a name set out in the application as—

  (a)  the name of a proposed limited liability partnership; or

  (b)  the name to which a limited liability partnership proposes to change its name.

(2) Upon receipt of an application under sub-section (1) and on payment of the prescribed fee, the Registrar may, if he is satis­fied, subject to the rules prescribed by the Central Government in the matter, that the name to be reserved is not one which may be rejected on any ground referred to in sub-section (2) of section 15, reserve the name for a period of three months from the date of intimation by the Registrar.

Change of name of limited liability partnership.

17. (1) Notwithstanding anything contained in sections 15 and 16, where the Central Government is satisfied that a limited liabili­ty partnership has been registered (whether through inadvertence or otherwise and whether originally or by a change of name) under a name which—

  (a)  is a name referred to in sub-section (2) of section 15; or

  (b)  is identical with or too nearly resembles the name of any other limited liability partnership or body corporate or other name as to be likely to be mistaken for it,

the Central Government may direct such limited liability partner­ship to change its name, and the limited liability partnership shall comply with the said direction within three months after the date of the direction or such longer period as the Central Government may allow.

(2) Any limited liability partnership which fails to comply with a direction given under sub-section (1) shall be punishable with fine which shall not be less than ten thousand rupees but which may extend to five lakh rupees and the designated partner of such limited liability partnership shall be punishable with fine which shall not be less than ten thousand rupees but which may extend to one lakh rupees.

Application for direction to change name in certain circumstances.

18. (1) Any entity which already has a name similar to the name of a limited liability partnership which has been incorporated subsequently, may apply, in such manner as may be prescribed, to the Registrar to give a direction to any limited liability part­nership, on a ground referred to in section 17 to change its name.

(2) The Registrar shall not consider any application under sub-section (1) to give a direction to a limited liability partner­ship on the ground referred to in clause (b) of sub-section (1) of section 17 unless the Registrar receives the application within twenty-four months from the date of registration of the limited liability partnership under that name.

Change of registered name.

19. Any limited liability partnership may change its name regis­tered with the Registrar by filing with him a notice of such change in such form and manner and on payment of such fees as may be prescribed.

Penalty for improper use of words “limited liability partnership” or “LLP”.

20. If any person or persons carry on business under any name or title of which the words “Limited Liability Partnership” or “LLP” or any contraction or imitation thereof is or are the last word or words, that person or each of those persons shall, unless duly incorporated as limited liability partnership, be punishable with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees.

Publication of name and limited liability.

21. (1) Every limited liability partnership shall ensure that its invoices, official correspondence and publications bear the following, namely :—

  (a)  the name, address of its registered office and regis­tration number of the limited liability partnership; and

  (b)  a statement that it is registered with limited liabili­ty.

(2) Any limited liability partnership which contravenes the provisions of sub-section (1) shall be punishable with fine which shall not be less than two thousand rupees but which may extend to twenty-five thousand rupees.