Diahonour of cheque
Querist :
Anonymous
(Querist) 13 October 2011
This query is : Resolved
A bank manager issued a cheque of one lakh to a petty contractor towards the interim payment of d construction of his house.on produce d cheque dishonour by insufficient fund,later on reproduce by stop payment.d contractor have no labour or work lincense.through d estimated work was done,manager dening to pay d cheque amount along with d final payment on baseless.is it proper to serve a legal notice or what would b d procedure to get payment on which act and section.pl suggest.
Sankaranarayanan
(Expert) 13 October 2011
you come out from your mask and ask the question.If any one issue the cheque without sufficient fund is against law, so he has to answer before the question, even the contractor not fulfilled his duty, if he breach then he can file the case separately, If any agreement made between him and his contractor. we need more details on it
ajay sethi
(Expert) 13 October 2011
you cna file complaint under section 138of negotibale instruments act for dishonour of cheque .
contractor can also file summary suit against the bank manager
prabhakar singh
(Expert) 13 October 2011
Proceeding u/s 138 will require a notice with in time prescribed ,better consult a local lawyer as things are a bit technical and you can not handle the same on your own without help of a lawyer..
Nadeem Qureshi
(Expert) 13 October 2011
The Contractor have right to file Civil and Criminal case against the bank manager, u/s 138 of NI Act and Under CPC he can file a suit for recovery
Nadeem Qureshi
(Expert) 13 October 2011
Dear Mr. Sethi
Can summery suit can be file without any written agreement or bill of exange, or hundis, promessory notes
as the section said
ORDER XXXVII. SUMMARY PROCEDURE 1[* * *]
1. The Words "On Negotiable Instruments" omitted by Act 104 of 1976, sec. 84 (w.e.f. 1-2-1977).
1[1. Courts and classes of suits to which the Order is to apply
(1) This Order shall apply to the following Court, namely:-
(a) High Courts, City Civil Courts and Courts of Small Causes; and
(b) other Courts;
Provided that in respect of the Courts referred to in clause (b), the High Court may, by notification in the Official Gazette, restrict the operation of this Order only to such categories of suits as it deems proper, and may also, from time to time, as the circumstances of the case may require, by subsequent notification in the Official Gazette, further restrict, enlarge or vary, the categories of suits to be brought under the operation of this Order as it deems proper.
(2) Subject to the provisions of sub-rule (1) the Order applies to the following classes of suits, namely:-
(a) suits upon bills of exchange, hundies and promissory notes;
(b) suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising,-
(i) on a written contract, or
(ii) on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or
(iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only.]
1. Subs. by Act No. 104 of 1976 for rule 1 (w.e.f. 1-2-1977).
HIGH COURT AMENDMENTS
Bombay.-(1) In Order XXXVII, in rule 1, for sub-rule (1), substitute the following sub-rule, namely:-
"1. This order shall apply to the following Courts, namely:-
(a) High Courts, City Civil Courts and Courts of Small Causes; and
(b) such other Courts as may be specifically empowered in this behalf by the High Court from time to time by a Notification in the Official Gazette: Provided that in respect of the Courts referred to in clause (b), the High Court may, by notification in the Official Gazette, restrict the operation of this Order only to such categories or suits as it deems proper and may also from time to time, as the circumstances of the use may require, by subsequent notification in the Official Gazette, further restrict, enlarge, or vary, the categories of suits to be brought under the operation of this Order as it deems proper." (w.e.f. 1-10-1983)
Kerala.-Omit Order XXXVII. (w.e.f. 9-6-1959)
1[2. Institution of summary suits
(1) A suit, to which this Order applies, may if the plaintiff desires to proceed hereunder, be instituted by presenting a plaint which shall contain,-
(a) a specific averment to the effect that the suit is filed under this Order;
(b) that no relief, which does not fall within the ambit of this rule, has been claimed in the plaint;
(c) the following inscription, immediately below the number of the suit in the title of the suit, namely:-
"(Under Order XXXVII of the Code of Civil Procedure, 1907)."
(2) the summons of the suit shall be in Form No. 4 in Appendix B or in such other form as may, from time to time, be prescribed.
(3) The defendant shall not defend the suit referred to in sub-rule (1) unless he enters an appearance and in default of his entering an appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff shall entitled to a decree for any sum, not exceeding the sum mentioned in the summons, together with interest at the rate specified, if any, up to the date of the decree and such sum for costs as may be determined by the High Court from time to time by rules made in that behalf and such decree may be executed forthwith.]
1. Subs. by Act No. 104 of 1976 for rule 2 (w.e.f. 1-2-1977).
1[3. Procedure for the appearance of defendant
(1) In a suit to which this Order applies, the plaintiff shall, together with the summons under rule 2, serve on the defendant a copy of the plaint and annexures thereto and the defendant may, at any time within ten days of such service, enter an appearance either in person or by pleader and, in either case, he shall file in Court an address for service of notices on him.
(2) Unless otherwise order, all summonses, notices and other judicial processes required to be served on the defendant, shall deemed to have been duly served on him if they are left at the address given by him for such service.
(3) On the day of entering the appearance, notice of such appearance shall be given by the defendant to the plaintiffs pleader, or, if the plaintiff sues in person, to the plaintiff himself, either by notice delivered at or sent by pre-said letter directed to the address of the plaintiffs pleader or of the plaintiff, as the case may be.
(4) If the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summons for judgment in Form No. 4A in Appendix B for such other Form as may be prescribed from time to time, returnable not less than ten days from the date of service supported by an affidavit verifying the cause of action and the amount claimed and stating that in his belief there is no defence to the suit.
(5) The defendant may, at any time within ten days from service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just:
Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious:
Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court.
(6) At the hearing of such summons for judgment,-
(a) if the defendant has not applied for leave to defend, or if such application has been made and is refused, the plaintiff shall be entitled to judgment forthwith; or
(b) if the defendant is permitted to defend as to the whole or any part of the claim, the Court or Judge may direct him to give such security and within such time as may be fixed by the Court or Judge and that, on failure to give such security with the time specified by the Court or Judge or to carry out such other directions as may have been given by the Court or judge, the plaintiff shall be entitled to judgment forthwith.
(7) The Court or Judge may, for sufficient cause shown by the defendant, execute the delay of the defendant in entering an appearance or in applying for leave to defend the suit.]
1. Subs, by Act No. 104 of 1976 for rule 3 (w.e.f. 1-2-1977).
HIGH COURT AMENDMENTS
Delhi.-Same as in Punjab.
Himachal Pradesh.-Same as in Punjab.
Punjab.-In Order XXXVII, in rule 3, for sub-rule (3), substitute (he following sub-rule, namely:-
"(3) The provisions of section 5 of the Indian Limitation Act, 1908, shall apply to applications under sub-section (1)."
4. Power to set aside decree
After decree for the Court may, under special circumstances set aside the decree, and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do, and on such terms as the Court thinks fit.
5. Power to order bill, etc., to be deposited with officer of Court
In any proceeding under this Order the Court may order the bill, hundi or note on which the suit is founded to be forthwith deposited with an officer of the Court, and may further order that all proceedings shall be stayed until the plaintiff gives security for the costs thereof.
6. Recovery of cost of noting non-acceptance of dishonoured bill or note-
The holder of every dishonoured bill of exchange or promissory note shall have the same remedies for the recovery of the expenses incurred in noting the same for non-acceptance or non-payment otherwise, by reason of such dishonour, as he has under this Order for the recovery of the amount of such bill or note.
7. Procedure in suits
Save as provided by this Order, the procedure in suits hereunder shall be the same as the procedure in suits instituted in the ordinary manner.
HIGH COURT AMENDMENT
Karnataka.-After Order XXXVII, insert the following Order, namely:-
"ORDER XXXVIIA
INTERLOCUTORY APPLICATIONS
Applications
1. An interlocutory application means an application to the Court in any suit, appeal or proceeding already instituted in such Court other than an application for execution of a decree or order or for review of judgment or for leave to appeal.
2. Except where otherwise prescribed by rules or otherwise provided by any law for the time being in force, an interlocutory application shall state only the order prayed for and shall not contain any statement of facts or argumentative matter. Every application in contravention of this rule shall be returned for amendment or rejected.
3. Every interlocutory application shall be supported by an affidavit. Where, however, the facts on which the application is based appear from the records in Court or relate to any act or conduct of the applicant's pleader himself, the Court may permit memorandum of facts signed by the applicant's pleader to be filed instead of an affidavit.
4. Any fact required to be proved upon an interlocutory proceeding shall, unless otherwise prescribed by rule or ordered by Court, be proved by affidavit, but the Judge may in any case direct evidence to be given orally, and thereupon the evidence shall be recorded and exhibits marked in the same manner as in a suit." (w.e.f. 30-3-1967)
Shastri J.K.
(Expert) 13 October 2011
I agree with mr.prabhakar singh & mr.Nadeem Qureshi
Shonee Kapoor
(Expert) 13 October 2011
Issuance of notice can not be avoided.
There need not be any written agreement for it.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
