Want to file a case under 138 ni act
Amar Kumar
(Querist) 18 April 2014
This query is : Resolved
Hi,
One of my aunt bought a jewelry set from Tanisq for Rs 4 lakhs (Aprox.). After the purchase her daughter in law liked the set and requested her to give the set. My aunt's daughter in law gave a 6 months post dated cheque for the entire amount. The post dated cheque was given because she had her funds locked in FD's & she did not want to break it in the middle. Now when the cheque date neared her daughter in law ignored her call. The cheque has retuned saying 'Payment stopped by drawer'. Should she file a case under 138 to recover the amount. How strong is the case? One thing to note is that between the purchase and resale of the said jewelry set the price of gold had incresed 20% but my aunt did not charge any profit on it. She has given the original invoice along with the set but has got a duplicate invoice from the shop.
ajay sethi
(Expert) 18 April 2014
it is better dispute between mother in law and daughter in law be resolved amicably rather than going to court . it is not advisable to wash dirty linen in public .
if situation is not resolved amicably issue legal notice under section 138 Ni if she so desires .
Amar Kumar
(Querist) 18 April 2014
She has tried to contact her many times but her daughter in law is not taking any calls. It is a clear case of cheating an elderly women of her savings.My aunt wants to know whether the case is strong or not. She does not want to file a case and go through all the trouble if she does not get justice later.
Guest
(Expert) 18 April 2014
Is she trying to evade payment in lieu of dishonoured cheque?
Amar Kumar
(Querist) 18 April 2014
Yes Sir. She neither wants to make the payment nor she is willing to return the Jewelry set.
Guest
(Expert) 18 April 2014
OK, but what is the role of your aunt's son, if daughter-in-law neither wants to make the payment nor she is willing to return the Jewelry set? Instead of adopting the legal path of creating enmity amongst the family members, why she is not asking her son to settle the issue.
Amar Kumar
(Querist) 18 April 2014
There is a problem between her son and her daughter in law. My aunt lives in Patna. They live in Mumbai and both are working. Her daughter in law works with ICICI Bank. But now they are not living together from few months. In fact this may be also the reason of non payment of cheque amount. Recently she has also transferred some 10 lakhs from her sons account to her account as she had the online passwords of her husband account and she used to take care of family investments.Her son does not want to put any charge on his wife. So my aunt has no choice but to do something on her own.
Dr J C Vashista
(Expert) 19 April 2014
She (your aunt) should file complaint u/s 138 NI Act, if DIL do neither settle the matter amicably, nor returning jewellery nor living with her husband/ son of your aunt.
Guest
(Expert) 19 April 2014
Clearly, it is a family tangle due to some issues. There are several ways to solve that but she may lose the sympathy of her son also, if any harsh step or legal recorse is adopted, more so, when her son is not ready to put any charge on her wife. Consequences can be even worse, if daughter-in-law adopt some revengeful measures against the family.
Moreover, detailed analysis of the problem would be necessary to solve that amicably by examination of related documents and the background about necessity to purchase & transfer of the jewellery by mother-in-law to daughter-in-law, the timing and occasion of such tranfer and if that was a transaction on behalf of daughter-in-law, why daughter-in-law could not buy jewellery by using her own credit card when she was bank employee herself and would have been able to use her credit card for purchase of jewellery, etc.
So, personal and private consultation with some expert is recommended for your aunt to find ways and means to settle the issues amicably without making any harm to family relations.
Rajendra K Goyal
(Expert) 19 April 2014
In the given circumstances, send legal notice and file case for Under negotiable Instrument Act. Also inform by letter to her ICICI Bank.
V R SHROFF
(Expert) 19 April 2014
If u had receipt of jewellery from dil, you issue notice u/s 138ni, and file complaint with jmfc / mm court.
malipeddi jaggarao
(Expert) 19 April 2014
First reconciliation by roping-in elders and if no result notice u/s 138 NI Act.
Amar Kumar
(Querist) 19 April 2014
Thanks to all the experts for the advice. We are going ahead with sending the notice for demand of payment as per the act. One of respected expert has suggested to also inform the bank. I request you sir to kindly explain what to write to bank.
ajay sethi
(Expert) 19 April 2014
thanks for your appreciation . it is not necessary to write any letter to the bank
ABDUL RAZIQUE
(Expert) 19 April 2014
Nothing more to add. All experts describe well fully.
T. Kalaiselvan, Advocate
(Expert) 20 April 2014
I think besides notice, subsequently a case u/s 138 NI Act, a civil suit for recovery of money can be more effective and since the DIL is a bank employee, it will be easy to recover the amount quickly.
Rajendra K Goyal
(Expert) 20 April 2014
It is unethical for a Bank employee if his /her cheques are bounced. Inform the Bank to take disciplinary action against the employee as per service rules.
Amar Kumar
(Querist) 20 April 2014
Sir do we have any time constraint to file a civil suit in this case like we have in the 138 NI. We want to see if after sending the notice/ filing the case, she comes forward for a compromise.
V R SHROFF
(Expert) 20 April 2014
138 ni notice opens door for compromise/ as well as Legal proceedings.. DO IT NOW.
Dr J C Vashista
(Expert) 20 April 2014
There is a time frame for issuance of notice and filing of complaint,which is required to be adhered to, which your lawyer shall do it within stipulated time, contact him/her.
Amar Kumar
(Querist) 20 April 2014
We will get the notice drafted today evening and post it tomorrow through speed post for filing 138 case. But my query to the experts is whether to file a civil case for recovery of money there is a time constraint or not. We want to see if my aunts daughter in law comes forward for settlement or not. If she does not come then only we want to file another case (civil case).
ajay sethi
(Expert) 20 April 2014
summary suit would provide faster relief then filing complaint under section 138 Ni . cheque bouncing cases take around 5 years to be disposed of . if you file summary suit you can get order from court to direct daughter in law deposit the money in court within 1 year
Amar Kumar
(Querist) 20 April 2014
Sir we met a lawyer yesterday and asked him whether we can go for a summary suit. But he advised us to go ahead with the 138 notice & then the case. He said that for summary suit a non disputable debt should be there. There are all chance that she will dispute this debt. He also said that filing more than one case will cost us more. One more thing to note is that she still has more than enough money in her fixed deposits to pay her cheque amount. This I found out through a friend working in the same bank.
ROHIT SHARMA
(Expert) 20 April 2014
Dear Mr Amar Kumar,
1. A Law is a Law.
2. The instance of such bouncing of cheques does comes within the scope and application of the provisions contained in the Negotiable Instrument Act, and a complaint u/s 138 N.I. Act needs to be processed without any hesitation in case the drawer is not coming forward to resolve the matter amicably.
3. Well, the logical end results will surely benefit you.
4. If need be talk to this lawyer.
Adv. Rohit Sharma.
(B.Sc. L.L.B. L.L.M.)
(M) 09824047971.
E- Mail : lawgate1349@gmail.com
ajay sethi
(Expert) 20 April 2014
it is true that filing more than one case is expensive affair . in addition you have to pay court fees for filing summary suit . but results are faster in summary suit .
Guest
(Expert) 20 April 2014
Your lawyer has very sincerely advised you.
T. Kalaiselvan, Advocate
(Expert) 21 April 2014
I think you have been properly advised by all experts, now the choice if yours to take appropriate action.
Amar Kumar
(Querist) 21 April 2014
We are sending the demand notice by speed post at her residential address as well as her office address. Hope she receives them.
Guest
(Expert) 21 April 2014
Needful advice has already been rendered by various experts. Details of the bit by bit process you want to adopt is not required to be reported.
ajay sethi
(Expert) 21 April 2014
query is resolved
Amar Kumar
(Querist) 21 April 2014
Thanks to all the experts.
Guest
(Expert) 21 April 2014
You are welcome.
