pawan (director) 19 August 2012

Legal notice by email validity

IS IT VALID IN IN ACT 138 IF NOTICE IS SERVED BY EMAIL AS PER DETAILS ON THE WEBSITE OF THE COMPANY AS PARTY NOT ACCEPTING OTHER WAYS

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17 Replies

R Trivedi (advocate.dma@gmail.com) 19 August 2012

Keep the evidence of notice sent to last known address by registered post. Scanned copy of the same may be sent by email. Take action depending on what is the endorsement on the post if it is returned back.

pawan (director) 19 August 2012

THANX FOR PROMPT REPLY

1) EMAIL SERVED PROPERLY

2) SPEED POST RETURNED BACK SAYS :NO COMPNAY EXIST BY THIS NAME ON ABOVE ADDRESS ( DESPITE BIG BOARD AT PRESENT ON THIS ADRESS)

KINDLY SUGEST ACTION TO BE TAKEN

shushil (xsd) 19 August 2012

Send a RTI to postal department asking them to explain how they find out that No company existed .But u should findout first that if company is still there or it has changed its address.

Yogesh Anand (Head- Legal AVP) 19 August 2012

The notice under sec. 138 of NI Act is required to be served on the accused within one month of intimation of dishonour of cheque but no specific format is prescribed. Hence it can be issued by email. As per section 4 of IT ACT it will be recognised as valid proof of being sent in writing. However the requirement of signature can be complied with by getting it signed digitally, Though there is no specific requirement under sec. 138 that the notice should be signed. SC has recently held that even if the notice does not bear signature of the sender, the demand of cheque amount is held validly made by sending the notice at proper address and recieved by the issuer of bounced cheque.

Yogesh Anand (Head- Legal AVP) 19 August 2012

For proving service of notice by email a delivery/read reciept may be requested while sending the email and it be ensured that the email ID is correct. Please refer sec. 65B of Evidence Act for this purpose which has been incorporated to prove electronic records.

pawan (director) 19 August 2012

SIR THANKS

1) I TALKED TO THE POST MASTER HE SAID POSTMAN WENT THERE AND GLOW SIGN BOARD THERE BUT WE DONT HAVE RECOR THAT BY THIS NAME CO EXIST.

2) OUR PERSON ASKED AT THE ADDRESS AND TOLD NO CO EXIST BY THIS NAME

3) CO, EXIST AT PRESENT I HAVE SEEN

4) WEBSITE SHOWS CO ADREES

Suri.Sravan Kumar (senior) 19 August 2012

judgement pertaining to return of regd cover "no such addressee

BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.

F.A.No.1016 OF 2009 AGAINST C.C.NO.431 OF 2008 DISTRICT CONSUMER FORUM-I, HYDERABAD

Between
1.     The Post Master
        Afzalgunj Post Office
        Hyderabad-012

2.     The Post Master
        Village: Mamidi Pally-005
        Ranga Reddy Dist.

Appellants/opposite parties

A N D

V.K.Sanghi, S/o late Shri G.P.Sanghi
Age 72 years, Occ: Advocate, R/o 501-A
Major Residencey, Masab Tank
Hyderabad-028.
Respondent/complainant

Counsel for the Appellants Sri Vasireddy Vinod Kumar

Counsel for the Respondent Party-in-Person

               QUORUM:   HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT
                                        SMT M.SHREESHA, HON’BLE MEMBER
                                                        &

SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER

FRIDAY THE TWENTY NINETH DAY OF JULY

TWO THOUSAND ELEVAN

Oral Order ( As per R.Lakshminarsimha Rao, Member)
***

1. The opposite parties are the appellants. They have filed the appeal challenging the order of the District Forum which awarded a sum of `1,000/- as compensation and `500/- towards costs besides issuing direction for refund of `25/- to the complainant.

2. The respondent had sent a letter through registered post through the first appellant to the Asst. Engineer – opposite party APCPDCL, Mamidipally, R.R.District on 22.4.2008 and the letter was returned with the endorsement “no such addressee. Returned to Sender”.

3. It is contended by the respondent that the appellants have been negligent and the postman had endorsed that he visited the premises on Sunday and on other dates, 23.04.2008, 26.04.2008, 28.04.2008, 29.4.2008 etc., as also the appellants had not verified the dates endorsed by the postman.

4. It is contended on behalf of the appellants that the letter was sent to Pahadi Shariff Branch Post office as the addressee APCPCDL Ltd., Mamidipally comes under its delivery jurisdiction and the postman concern returned the letter with the observation that there was no such addressee. It is contended that AE (Operation) APCPDCL PahadiShareef has functioned in the house of APCPDCL Ltd., Mamidipally and shifted the office on administrative reasons to plot no.73, Venkateswara Colony, Balapur from the month of November 2007. It is contended that no intimation about the change of office was given by the addressee to the appellants. As per Sec.1 Rule 32 of the Post Office Guide, the articles sent through registered post are treated in the same manner as if they have posted in a letter box and in case of delay or damage no claim for compensation can be entertained and Sec.6 of Indian Post Office Act confers immunity to the officer of the Post Officers for mis-delivery, delay or damage unless the officer concerned caused the loss fraudulently or by willful act.

5. It is contended that the respondent had earlier filed C.D.No.677 of 2006 on the premise of the return of letter sent to A.E. AP State Electricity Board, Mamidipally, R.R.District which was split into APGENCO, APTRANSCO and APDISCOM (Distribution) with the endorsement that the addressee refused to receive it. Further, it is contended that the appellants filed appeal before the State Commission in F.A.No.640 of 2007 whereof the compensation was reduced from `5,000/- to `4,000/- and against the order of State Commission the appellant’s filed the writ petition which is pending before the High Court.

6. The respondent has filed his affidavit and Exs.A1 to A4. On behalf of the appellants the documents Exs.B1 to B4 had been marked.

7. Feeling aggrieved by the order of the District Forum, the opposite parties filed the appeal.

8. The point for consideration is whether the appellants rendered any negligence in dispatch and return of the letter sent to registered post on 22.4.2008?

9. The respondent had sent letter through registered post on 22.4.2008 through the first appellant to the Asst. Engineer, APCPDCL – OP Mamidalapally Village, Ranga Reddy District. The letter was returned with the endorsement “no such addressee – returned to addressee”. Wherever a person leaves or shifts his place of residence or business, it is incumbent on such person to inform the post office about his new address. In the present case, the addressee Assistant Engineer, APCPDCL – OP Mamidalapally Village, Ranga Reddy District had not informed the change of his address from plot no.73, Venkateswara Colony, Balapur. The appellants contend that the addressee had shifted his office from the month of November 2007 to Balapur. It should be borne in mind by the opposite party that the addressee is not an individual and he is a public officer working with APCPDCL which distributes the energy one of the most essential requirements of the basic human life. The appellant’s contention that the addressee had not informed them his shifting of his office to Balapur does not obviate their negligence in regard to the endorsement, “no such addressee”.

10. The respondent has relied upon the decision of the High Court in W.P.No.1874 of 2008 wherein the High Court had deprecated making of such endorsement not based on any supporting evidence. It was held:

In Gajula Rama Rao’s case (4 supra) registered notices taken out by the counsel for the appellants were returned with an endorsement that the house was locked for 10 days, hence returned. The Court ordered that the endorsements like addressee not found, party refused, addressee not in the village, no such addressee and incorrect address should be supported by reasons and especially when the party refuses the letter, he could get an endorsement at least from two mediators preferably, neighbours with regard to refusal of letters. It was also observed by the division Bench of this Court that if any such endorsements are found, without proper explanation, the postmaster concerned shall also be made responsible and proper action has to be taken against him.

11. The aforementioned case was referred to, in its written version by the opposite party. In view of the similar circumstances of both the cases, we are inclined to hold that the appellants were negligent in regard to endorsement made by the postman that “no such addressee” without making any enquiry at the locality of the addressee. In the light of the decision, of the High Court and for the aforementioned reasons, we do not find any infirmity in the findings recorded by the District Forum. The appeal as such is liable to be dismissed.

12. In the result the appeal is dismissed. The order of the District Forum is confirmed. The costs of the proceedings are quantified at `1,000/-. Time for compliance four weeks.

Sd/-

PRESIDENT
Sd/-

MEMBER
Sd/-

MEMBER

Dt.29.07.2011

KMK*

ashok kumar (Social Worker) 19 August 2012

Yogesh anand has given teh most pertinent reply with teh backing of relevant laws

N.K.Assumi (Advocate) 20 August 2012

Thanks S.Shravan.

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com) 20 August 2012

Procedural law has not been developed to the extent that notice by email is legal.

More over if you claim such notive you have to prove A) IT IS THE CORRECT ID B) WHETHER THE MAIL BOX WAS OPENED BY THE ACCUSED IF SO WHEN.

SINCE THERE ARE TWO CONDITIONS IN THE NI 138 LAW SUB SECTION B ) SAYS GIVING NOTIVE AND SUBSECTION C) SAYS AFTER RECIEPT OF NOTICE.

THIS ASPECT OF GIVING NOTICE AND RECIEPT OF NOTICE HAS BEEN DISCUSSED IN DETAIL IN VARIOUS CASE LAWS OF APEX COURT.

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LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com) 20 August 2012

SEE FROM ONE THE CITATION OF SUPREME COURT REGARDING NOTICE=

[AIR 2001 SC 676], wherein this Court categorically held:

“6. Section 27 of the General Clauses Act deals
with the presumption of service of a letter sent by
post. The dispatcher of a notice has, therefore, a
right to insist upon and claim the benefit of such a
presumption. But as the presumption is rebuttable
one, he has two options before him. One is to
concede to the stand of the sendee that as a matter
of fact he did not receive the notice, and the other
is to contest the sendee's stand and take the risk for
proving that he in fact received the notice. It is
open to the despatcher to adopt either of the
options. If he opts the former, he can afford to take
appropriate steps for the effective service of notice
upon the addressee.

1 Like

R.K Nanda (Advocate) 21 August 2012

Email service of legal notice is also valid in law as per IT Act.

Democratic Indian (n/a) 23 August 2012

"Solve problems" has explained the matter very well. Though emails notices are technically legal but there is no guarantee or confirmation of email delivery. Thus this aspect is the problem. Sending email is like sending a post card or ordinary letter. No guarantee of delivery or aknowleldgment of delivery. The opposite party can claim they never recieved the email. Even email service providers do not provide guaranteed delivery of email or any aknowledgment of delivery.

R Trivedi (advocate.dma@gmail.com) 23 August 2012

Courts have maintained that a legal notice sent to the last known address is sufficient. Looking at the many issues raised under S.138 on this aspect, the court has given one more bloomer: That is, the case can be dismissed by the trial court if the accused makes payment on the first day after receiving the summon.

So ideally a person who denies not receiving notice, must also deny receiving summons !! Otherwise there is a possibility of this defense failing.

Also the act does not define the mode of notice, so any legally acceptable mode may be argued to be sufficient.