138 notice second time
Guest
(Querist) 18 November 2009
This query is : Resolved
First Sec.138 of NI Act notice issued against Mr. B. Thereafter, Mr. B called for settlement and asked to wait for 15 days.
Now, Mr. B denied for settlement, S. 138 notice period passed by 40 day...
Can second time notice U/sec. 138 of NI Act is permissible or what would be a remedy for this?
AEJAZ AHMED
(Expert) 18 November 2009
Second Notice is not permissible in your case.
Cause of action in your case available under NI Act is for once only, as you already issued notice, he recieved the same but fail to make payment.
As per the facts only FIVE (5) DAYS left for you to file complaint, contact immediately your lawyer.
Still if any doubts please mentioned dates of all the transactions, then we can guide you very clearly.
AEJAZ AHMED
(Expert) 18 November 2009
Kindly go through Par - 9 of the attached Judgment.
adv. rajeev ( rajoo )
(Expert) 18 November 2009
Cause of action arises only once, you cannot issue 2nd notice. Only 5 days are left to file a complaint. Hence immediately file a complaint.
Raj Kumar Makkad
(Expert) 18 November 2009
either file complaint within nextt 5 days or present the cheque again to your banker if the cheque is not going to expire and on the basis of next bouncing, again issue the notice and on his failure to remit the payment within next 15 days, file the complaint.
H. S. Thukral
(Expert) 18 November 2009
No Mr. Makkad it can not be done. Once notice of demand is issued the cause of action arises. Representation is possible only if no notice is issued and a month has passed since the cheque was returned.
niranjan
(Expert) 18 November 2009
Had the notice been not issued on first bounce,the cheque could have been presented again and you would have got cause of action to issue notice,but when you have already exhausted one cause of action, you cannot issue another notice.Now the way open for you is to file the civil suit to recover the amount
Arvind Singh Chauhan
(Expert) 18 November 2009
You can take resort to proviso inserted by Amendment act 2002 which provides after clause (b) as " provided that the cognizance of a complaint may be taken by the court after the prescribed period, if the complainant satisfies the court that he had sufficient cause for not making complaint within such period".
Another resort already advised by Raj Kumar sir. Judgment in Dalmia Cement ( Bharat) Ltd V/S Glaxy Traders and agencies Ltd and others AIR 2001 SC 676 supports to his advice.
