Information regarding section 138 of negotiable inst. act.
Priyesh
(Querist) 28 February 2019
This query is : Resolved
Respected Lawyers, I want to ask you query regarding Sec. 138 of N.I. Act, 1881. My father took a H.P.Loan against the stock-in-trade in the year 2005 from the Talod Nagarik Sahkari Bank Ltd., Talod. This loan declared N.P.A. by the said bank in the year 2006 as that was unpaid by my father in stipulated time. The said bank filed a suit in the court of Board of Nominees for the recovery of the N.P.A. loan of my father. The bank won the suit at that time and Nominee of the Registrar passed decree to recover the outstanding amount of loan make an attachment of the residential property of my father which is inherited by my father and by my uncle jointly from my grand father. The said bank filed a civil suit against my father in the year 2013 in respect of the decree passed by the nominee of the registrar. My father deceased in the year 2015. My uncle also took a Loan from the said bank by making a mortgage of the above inherited residential property of bank in the year 2006 and it was fully paid up by my uncle in the year 2017. My uncle made an application to the bank to release the property which was mortgage by my uncle and the officials/board of directors of the bank by taking the advantage of that situation told my uncle bring the Cheque of your brothers son against the due amount of your brothers N.P.A. loan, we will release the residential property which was mortgaged by you. Thus the officials/board of directors of the said bank by forced obtained Cheque and obtained a signature on the affidavit as that Cheque given for the payment of the debt of my father. But I can failed to arrange the money in respect of Cheque. I need some more time to repay my father's debt. Suggest me a way which is available to me legally?
Dr J C Vashista
(Expert) 01 March 2019
You have no privity to the loan taken by your father wherein he (father) had mortgaged the property, hence the cheque issued by you is against "no" legally enforceable debt.
However, since the cheque was issued to redeem mortgaged property you may discuss with the banker and take the cheque back but you are liable to clear the debt of estate inherited by you.
Consult and engage a local prudent lawyer with documents for better appreciation of facts, guidance and proceeding.
P. Venu 
(Expert) 01 March 2019
It is mandatory that due Notice be served upon you before approaching the court under NI 138. You can place/bring all the facts on record if and when such Notice is served upon you to establish that there is no legally enforceable debt.
Priyesh
(Querist) 18 April 2019
Thank you to both of you respected lawyers
