Plz suggest remedy
Arvind Singh Chauhan
(Querist) 24 May 2012
This query is : Resolved
"A" had to pay money to "B" for sale of Goats. "B' very cleverly used to promise to "A" for paying his money. "A" issued first notice to "B", in answer of this notice he assured "A" to pay within 6 months but didn't pay. Again "A" issued second notice to "B", again "B" answered that he would pay within 6 months and asked more time.
But he didn't pay. "A" issued another notice in answer of this notice "B" replied clearly that "A" has no claim as the claim is time barred.
Sir it is true that 3 years time has been elapsed from the date of amount due.
Keeping this fact I filed complaint case for prosecuting him for 420, and 422 IPC as his intention was from the very beginning to cheat. He very cleverly and by taking "A" in to confidence, let the time spent. As there is also law that it is a case of civil nature. I am confused now.
1- But there is a question now if the recovery becomes time barred is there any remedy to punish the cheater ?
2- Or is there any other option to recover this amount.
3- When the cause of action arises in such case.
4- Whether he is liable to be punished for 420, 422 IPC.
5- If I file civil suit with application of condonation of delay, is it maintainable?
Please help with relevant citation.
Adv.R.P.Chugh
(Expert) 25 May 2012
Dear Arvind Bhai,
In my humble opinion :-
1. If the replies to notices were in writing, then they serve up as acknowledgments of debt as per S.18 of the Limitation Act, 1908 and each time such reply is given the COA gets renewed hence if civil suit for recovery is filed within 3 years of last reply. Anything that can be construed as acceptance of jural relationship of creditor and debtor.
2. As above.
3. The Cause of Action arises when the amount becomes due and 3 years would be calculated from thereon
4. Yes he is liable for the offence of lesser offence of cheating as defined in 415 and punishable in 417 - where a person with an intent to deceive induces other to "consent to the other retaining property" to fit this into the present case" B with a fradulent/dishonest intention of causing gain to himself and wrongful loss to B - intentionally decieved him by inducing him to believe that payment would be made in due course, and by this succeeded in getting him to assent that B can retain the money for some while more. This clearly fits into 415 and is penal u/s 417 IPC.
5. The application for condonation of delay u/s 5 Limitation Act, 1963 - does not apply on suits but only appeals and applications (other than execution applications).
Hope this helps buddy !
V R SHROFF
(Expert) 25 May 2012
Arvindji, always suggest to receive PDC, so sec 138 can apply. receive transactions doc. Always ask for Pro Note , & renew it in such conditions . Mr. Chug had explained in details
PARTHA P BORBORA
(Expert) 25 May 2012
first of all you should not go for a crminal case because it appears from his rply that he was ready to pay the money within 6 months. it will prove that he had no intention to cheat you~ which is essential to constitute cheating as per 420 IPC.
BUT you should go for civil remady. His promise to pay the amount within 6 month is a strong evidence to support your claim. It is not at all time barred. Limitation shall be counted from the date of last notice of demand send by u. Consult with a local civil lawyer soon.
Shonee Kapoor
(Expert) 28 May 2012
It is a fit case for filing cheating case.
The debt gets renewed on every acknlowdgement and is not time-barred.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
