Section 138 validity in case of blank cheque given to the bank at the time of loan disbursement?
Priyesh
(Querist) 07 August 2015
This query is : Resolved
Respected Experts,
My father and my uncle took a loan from The Talod Nagrik Co-operative Bank a few years ago. They took a loan for two firms and they mortgage home as a security. My father and uncle maintain loan account for more than five years regularly. But now my father and my uncle not able to repay the amount of loan as such they have loss in their businesses. They are ready to pay loan if our home which is equitable mortgage is sold out. Now my question is that, the bank took a blank cheque at the time of loan disbursement and they file a case u/s 138 against my uncle so what can we do for this case in court???
SAINATH DEVALLA
(Expert) 08 August 2015
U R saying that they took loan for two firms? Whose property they have mortgaged?Why would the bank proceed legally when UR property is mortgaged,U may not have responded to their reminders. Though they have filed case under NI ACt,for for an amicable settlement of the liability,the bank will withdraw the case.
Guest
(Expert) 08 August 2015
Mr. Priyesh,
Banks never take blank cheques. They usually take advance cheques of specific amount of emi, not without any amount. Better consult some local lawyer to get appropriate advice based on examination of loan related documents. However, if the bank has really taken blank cheques, you have the need to have detailed personal discussion to apprise the lawyer to help you suggest the way out of the problem.
P. Venu
(Expert) 08 August 2015
It is improper that bank has taken blank cheques; it is fact that such things are happening because of the presumption under Section 139 NI Act.
The factum of having provided the blank cheque would be an adequate defence in 138 proceedings if this aspect could be proved.
Rajendra K Goyal
(Expert) 08 August 2015
You should try to talk with the Bank. Find out some buyer and talk to Bank to return original title deeds if the purchaser clears the loan and get the house registered in his name.
Amicable settlement with the Bank would be beneficial to all concerns.
Priyesh
(Querist) 08 August 2015
Respected Sainath Devalla,
Bank given a loan against two firms and property is mortgage is one which is combined property of my father and my uncle. In this case bank taken a blank cheque at the time of loan disbursement as a security. In that case can bank file a case under the section 138 of N.I. act????? Please provide me proper guidance sir. My father and my uncle try their best to sell out the property to settled the loan with bank. What can I do in this case???
SAINATH DEVALLA
(Expert) 09 August 2015
bank has given loan for two firms and property mortgaged is one,belonging to both of them.If the loan is given for two firms,they cannot club each other, as they will have two loan accounts.
U are firm in UR reply that the bank has taken a blank cheque.Is it a joint account or individual account, or cheque belonging to the firms?
Priyesh
(Querist) 09 August 2015
Respected Sainath Devalla,
The bank given a loan of Rs. 800000 to firm no. 1 and Rs. 700000 to firm no. 2. And these two loan accounts are separate, one of is belonging to my father and second one is belonging to the my uncle. My uncle given a blank cheque at the time of loan disbursement, this cheque is belonging to my uncle's separate account. Bank fill amount of Rs. 700000 in that cheque and the cheque was returned due to insufficient fund. This cheque was given at the time of loan disbursement and it was given in the year 2006. This cheque was presented for payment in account two years ago. In this matter bank will file a case under Section 138 of N.I Act. Please suggest me how I defend my case in court?? And let me know can my uncle's case can be defended by me as we are not financially sound?? I have done B.com.Weather this case will be defended by me or not???
SAINATH DEVALLA
(Expert) 10 August 2015
Now at last U are comming out with the true facts,U could have done so rather than wasting the time.Engage a good competent lawyer and ask UR uncle to fight the case.
Guest
(Expert) 10 August 2015
Mr. Priyesh,
I am still unable to digest your story due to some big loopholes in your description in all the posts.
However, your query is quite premature, as you don't have any such problem, right now, as per your statement, "bank WILL FILE a case under Section 138 of N.I Act, clearly a presumption by you.
BUT still, if you think your story is true, for examination of your case, can you please send me a scanned copy of the notice u/s 138, if received from the bank, and a copy of the Bank's memo for checque dishonour, through email at dcgroup1962@gmail.com ?
Priyesh
(Querist) 11 August 2015
Respected PS Dhingra,
My uncle took a loan of Rs. to exmpansion of their business from Talod Nagrik Co-Operative Bank in 2006 by mortgaging their property. In 2007 it becomes due and my uncle was failed to pay that loan as such they do heavy loss in their business. At the the time of loan sanctioning or disbursement The Talod Nagrik Co-Operative bank took a blank cheque as a security. In this case in the year 2010 they present a cheque for encashment in our hypothecation account. The aforesaid cheque was dishonored due to insufficiency of funds. The bank will file a case in the year 2010 that my uncle was made a offence under the negotiable instrument act,1881. Is this complaint is valid or not?, My uncle was not provide any cheque after loan disbursing, they provide only one cheque before the loan was disbursed??
SAINATH DEVALLA
(Expert) 11 August 2015
Again he is comming with new inputs,now he is saying that his uncle took the loan for expansion of business.U mean to say that the bank has filed a case under NI ACT in 2010. Instead of asking us whether valid or not,why don't U find out the status of the case from the court.
Guest
(Expert) 11 August 2015
Mr. Priyesh,
A part of the story you have already stated in your previous posts. Now in your present post.
Instead of sending me the scanned copy of notice, as asked, you have still tried to repeat the same with addition, "The bank 'WILL' file a case in the year 2010 that my uncle was made a offence under the negotiable instrument act,1881. Is this complaint is valid or not?"
Do you think the bank will file a case by going 5 years back to the year 2010 from the present time of the year 2015? If the bank has already filed the case in 2015, better send me a copy of the petition also by mentioning the present status of the case in the court of law.
Not only that, you have earlier state, "This cheque was presented for payment in account two years ago." That means during the year 2013. So, what is the relation of the year 2010 of filing the case and the presentation of cheque in 2013?
SO, HOW YOU WOULD PREFER TO JUSTIFY YOUR QUERY TO BE NOT A VAGUE AND HYPOTHETICAL QUERY?
Priyesh
(Querist) 11 August 2015
Respected Sainath Devalla,
The Bank filed a case in the year 2010. Now case is pending there in court. But i want to know bank has authority to file a case under n.i.act by altering the date and payee name in the blank cheque given to him at the time of loan disbursement? I want to know this case is valid in court or not?
SAINATH DEVALLA
(Expert) 11 August 2015
Better discuss the matter if it really exists with UR local lawyer as he will be person representing U all in the court.He may accept my suggestion or may not.Hence rely on him.
