Is section ni 138 applicable ...
CreateGoodwill
(Querist) 15 March 2013
This query is : Resolved
We have billed 8Lacs worth of Rs. material to X party in Cdg dealer after 1 year has cleared the monies
later we have raised the Debit note of Interest on delay payment.
Dealer has acknowledge the Debit notes and issued Chqs against the same.
these chqs are return from the bank
can we send Notice under NI 138 & if payment not received we can file legal case. pl suggest.
Nitish Banka
(Expert) 15 March 2013
You have not mentioned reason why the bank returned the cheque,if the reason is "insufficient funds" then it will constitute an offence u/s 138NI
CreateGoodwill
(Querist) 15 March 2013
Dear Mr. Nitish,
total 2 chqs deposited & where return.
1. funds insufficient
2. payment stop by Drawer
Devajyoti Barman
(Expert) 15 March 2013
Both are dishonouring of cheque for which case u/s 138 NI Act lies.
Raj Kumar Makkad
(Expert) 15 March 2013
Immediately send notices separately in both cases and even thereafter if payment is not received within 15 days of receipt of notices, do file two separate complaints as this shall definitely force the opposite party to compromise with you.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 15 March 2013
Well the recent SC citation has closed many doors of defense in-
CRIMINAL APPEAL decided on
New Delhi; November 27, 2012,
but the accused can raise legal defense of legal liability. Since you have received your normal dues but you are claiming interest for delayed payment.
You will have to prove lot of things in the court regarding agreement if any , previous transactions and trade custom.
Only receipt of debit note is not enough since there has to be AD IDEM for any contract to be binding.
Raj Kumar Makkad
(Expert) 15 March 2013
If the accused party has issued a cheque against the delayed interest then it shall safely be established that the agreement may it be oral for making payment of interest on delayed payments has been accepted and nothing more is required to be proved in the given case and the citation cited above is not applicable in the given matter.
V R SHROFF
(Expert) 15 March 2013
You can initiate 138 n i action by sending Legal Notice , demanding to pay chqamt.
After it's reply ,[ or no reply] lodge 138 ni complaint.
You don't loose anything doing so.
You hv two remedy 138& civil
Ajeet
(Expert) 15 March 2013
Section 138 in The Negotiable Instruments Act, 1881
138. Dishonour of cheque for insufficiency, etc., of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid. either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice. to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless-
(a) the cheque has been, presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course. of the cheque as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.- For the purposes of this section," debt or other liability" means a legally enforceable debt or other liability.
I HAVE MENTIONED THE SECTION FOR YOUR READY REFERENCE YOU WILL SUCCEED ONLY IF YOU FULFIL THE REQUIREMENTS OF THIS SECTION.YOU MAY ALSO HAVE TO READY TO ESTABLISH THAT DEBT OR LIABILITY IS LEGALLY ENFORCEABLE.
Raj Kumar Makkad
(Expert) 16 March 2013
The querists are simple layman and those should be advised accordingly and not by citing the entire rules, regulations and Act.
RAJU O.F.,
(Expert) 16 March 2013
As the cheques are returned for the reason " Insufficent funds" you may proceed under Sec. 138 of N IAct
Ajeet
(Expert) 16 March 2013
THANKS RAJ JI IT WAS ONLY THAT BY PLAIN READING HE MAY UNDERSTAND THE BASIC REQUIREMENTS HOWEVER UR SUGGESTION IS GOOD AN D I WILL KEEP IT IN MIND
