Missuse of security cheque
yash
(Querist) 11 August 2014
This query is : Resolved
DURING 2008 A LOAN WAS TAKEN BY ME FROM A NON-BANKING FINANCE COMPANY. MODE OF REPAYMENT WAS SET AS "ECS",AND LOAN WAS SENCTIONED @13.5% FLOTING RATE;AND 9 BLANK CHEQUES WERE TAKEN AS SECURITY.
AFTER 15 MONTHS OF REGULAR PAYMENT, DUE TO MARKET POSITION 2 ECS ARE RETURNED UNPAID,SO I REQUESTED COMPANY TO RESHEDULE "EMI" BY INCRESING THE TENURE.BUT MEANWHLE TIME PASSED DUE TO DISSCUSION WITH THEM AND 8 MORE ECS WERE RETURNED UNPAID.
AFTER THAT I SOMEHOW MANAGED AND IS REGULARLY PAYING ALL ECS BY TIME TILL TODAY WITH SOME AMMOUNT OF PARTPAYMENT FOR THOSE 10 ECS WHICH ARE UNPAID.
MEANWHILE WITHOUT MY KNOWLEDGE THE COMPANY APPOINTED "ARBITRATOR" OF THEIR CHOICE(for more than 75% cases ARBITRATOR is same)AND RECIVED A EX-PARTE AWARD DEMANDING IN FULL {PRINCIPAL+INTEREST+PANNEL INTEREST+BOUNCE CHARGES+FORCLOSURE CHARGES+LEGAL CHARGES}.
AFTER THAT FOR EXECUTION OF AWARD THEY APPLIED IN DISTRICT COURT,FROM A NOTICE BY THE COURT I CAME TO KNOW ABOUT AWARD.
SO I FILLED A OBJECTION UNDER SEC.34.
BY OBTAINING A CERTIFIED COPY OF AWARD AND RELEVENT DOCUMENTS I CAME TO KNOW THAT MY "FACILITY IS BEING TERMINATED DUE TO BREECH OF CONTRACT".
JUST AROUND A MONTH AGO MY BANK CHARGED "RS250 AS CHEQUE BOUNCE CHARGES". ON ENQUIRY FROM BANK I CAME TO KNOW THAT THE CHEQUE THAT WAS RETURNED WAS ONE OF THE 9 CHEQUES WHICH WERE GIVEN BLANK AS SECURITY. FURTHER BANK TOLD ME THAT 3 MORE CHEQUES OF SAME SERIES WERE ALSO RETURNED(just around 4 months ago but after 18 months of award).
THAT MEANS 4 CHEQUES OUT OF 9 CHEQUES (BLANK CHEQUES WHICH WERE GIVEN AS SECURITY)WERE MISUSED BY THE COMPANY.
MY QUESTIONS ARE :-
1. COMPANY CAN USE SECURITY CHEQUES FOR RECOVERY OF LOAN AMMOUNT WITHOUT INFORMING OR TAKING PRIOR PERMISSION FROM ME OR NOT ?
2. AFTER ACHIVING AWARD OF FULL AND FINAL AMMOUNT ; CAN THEY CLAIM MORE AMMOUNT BY USING SECURITY CHEQUES ?
3. HOW AFTER BRREACH OF CONTRACT(AS PER THEIR RECORD)THEY ARE STILL RECIVING ECS AND PART PAYMENT. IS IT IN FAVOR OF ME OR NOT AS PER LEGAL TERMS ?(ALTHOUGH LOAN IS MENT TO BE PAID,BUT CAN THEY ADJUST THE AMMOUNT AND PART PAYMENT IN INTEREST AND PENALTIES BY NOT DEDUCTING FROM PRINCIPAL AMMOUNT)?
4. THE RETURNED CHEQUE IS VALID FOR 138NI OR NOT, DUE TO MATERIAL CHANGES(3 HANDWRITINGS ARE THERE)?
5. WHAT WOULD BE THE JURIDICTION ?
6. CAN I FILE A CASE AGAINST COMPANY FOR MISSUSING MY VALUABLE PROPERTY ?
7. CAN I FILE ANOTHER CRIMINAL CASE U/S 420,CONSPIRACY,406,460,467,468,471,418,156(3).
8. ANY OTHER POINT ON WHICH I CAN FIGHT.
Advocate Ramesh
(Expert) 12 August 2014
As for as your questions concern, the answers for the number 1 question is unless or otherwise any specific agreement that the cheques are given for security, they can deposit these cheques. as for as question number 2 is concern in general they are not claiming more amount by using the security cheques. If they ask you will meet in court as for 3 question concern I am not able to understand what do you want. regarding the question number 4 it attracts 138 N.I Act. question number 5 it depends where they deposited or from where you will get notice.
As for as 6th & 7thquestion concern you can file a case against a company.
T. Kalaiselvan, Advocate
(Expert) 16 August 2014
The company once initiated the arbitrary proceedings and subsequently filed EP on the arbitral award, it is illegal to proceed with dishonor of cheques in its possession again and again. You have a very good case to challenge the 138 NI Act case, incase it is cropping up while the EP proceedings are going on. Take the help of a prudent lawyer to tackle your case effectively.
