Recovering a debt from a friend
Venkat
(Querist) 16 April 2020
This query is : Resolved
Can I file a civil law suit for recovery ? Is the amount recoverable even though a written agreement was never executed?
KISHAN DUTT KALASKAR
(Expert) 16 April 2020
Dear Sir,
It seems you have only one evidence that is payment by cheque to his account. On the ground you may get issue a legal notice and file as civil suit for recovery of amount with interest.
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Guest
(Expert) 16 April 2020
Very Politely and amicably in a friendly manner as you had said he is your friend try and get a genuine fresh cheque from him fpr the amount due.You should also collect a cheque for a small amount which could be encashed immediately and it is to confirm that the cheque received for full payment is genuine, After all this when the payment cheque gets dishonored your local good Advocate would take care and do the needful.
Rajendra K Goyal
(Expert) 16 April 2020
You said:
I loaned Rs.10 lakhs in December 2018 to my friend for his son's education abroad. There was no written agreement, but the amount was given to me by bank cheque.
Reply:
Loan can be proved in absence of written agreement provided you are able to prove your case by other evidences..
You have mentioned that the amount was given to me by Bank cheque, there are two conditions:
amount was given to them by you by bank cheque: This is proof of your payment to them.
amount was given to me by bank cheque: You mean they have issued a cheque in your favor as security, please clarify?
Rajendra K Goyal
(Expert) 16 April 2020
You said:
There was no oral agreement either but the implicit agreement was that his son would repay me after he finishes his education in two years.
Reply:
If you have given loan on these conditions, what make you to go away from your words, especially when you have loaned for a noble cause.
However, loan and terms can be proved through acceptable evidences in absence of written or oral agreement.
You said:
However, his son hasn't finished his education and returned from abroad amidst the COVID pandemic. I now would like to recover my debt with interest. Please advise how to go about this.
Reply:
Has he returned permanently by discontinuing his studies? If so, You have right to recover your loan.
If not, COVID-19 is global epidemic, his return is out of his control. Morally everyone should cooperate, legally you can call back your loan subject to agreed terms, to be proved before law.
Rajendra K Goyal
(Expert) 16 April 2020
You said:
Can I file a civil law suit for recovery since three years have not elapsed yet?
Reply:
You can.
If the matter is only regarding limitation, you can get the acknowledgement of debt on date / can execute agreement / get a promissory note / can secure your loan through postdated cheques.
You said:
Is the amount recoverable even though a written agreement was never executed?
Reply:
If you can prove your debt beyond doubt, court would order. Orders and execution may take 3-4 years with considerable cost.
Rajendra K Goyal
(Expert) 16 April 2020
Since he is your friend, better get the documents executed first. If possible and conditions permit, let the child complete his studies.
Alternately help / guide him to get loan from some Nationalized Bank and complete his studies.
Venkat
(Querist) 16 April 2020
Thank you very much for the detailed and considered responses everyone, especially Sri. Rajendra Goyal.
Raj Kumar Makkad
(Expert) 16 April 2020
1. As that person is not your friend now which is reflected from the fact that he has recently cheated you in another matter. It shows that you didn't care even for common sense while advancing such huge money. A man is known by his deeds only.
Raj Kumar Makkad
(Expert) 16 April 2020
2. He is an advocate but suppose had he not an advocate, even then that person might have tried his best to evade from repaying his debt money by adopting all lawful/unlawful means. Merely giving the cheque on your side just shows money given by you but it doesn't prove the purpose of payment. One can persume that you had repaid him your loan amount. There can be various persumptions which may against you.
Raj Kumar Makkad
(Expert) 16 April 2020
3. As per you, the son is true follower of his father so in the given circumstances, if you have no solid evidence in hand other than the payment through cheque made by you in favour of your earlier friend, no fruitful result may come out of the prolonged litigation which you intend to initiate.
Raj Kumar Makkad
(Expert) 16 April 2020
4. This is not otherwise good for your case though you are not directly related with the character of the son of your ex-friend.
Raj Kumar Makkad
(Expert) 16 April 2020
Law is nothing but a common sense. You must have known this common thing that before advancing such huge loan, one needs to have use to pen with ink. You are liable for the lapses, however, can you obtain whatsapp conversation regarding the said loan, its re-payment schedule etc. or any oral witness standing with you? If yes then chances of your success shall definitely increase.
Raj Kumar Makkad
(Expert) 16 April 2020
6. You shall have to file the civil suit at Hydrabad only wherein the cause of action had arisen. You cannot file it at bangluru, wherein you are presently residing.
Venkat
(Querist) 16 April 2020
Thank you very, very much Sri. Makkad.
Sudhir Kumar, Advocate
(Expert) 16 April 2020
You can try the procedure suggested by Mr Narasimha. If clicked it is going to be effective.
I do not expect that he will give you any cheque. If he really does it will be fine.
Sudhir Kumar, Advocate
(Expert) 16 April 2020
Money given to friends and relatives is always a charity in the garb of loan which is given in expectation of refund but always taken with intention of non-refund.
Such loan is taken by a person:-
(i) Who lacks business sense and cannot raise funds out of his own business and suddenly wants to be rich.
(ii) who cannot raise bank loan because :-
Either
he himself is not creditworthy
Or
the purpose for which he seeks loan is illegal
or
the purpose for which he seeks loan is not at all commercially viable.
(iii) Who knows he can afford not to refund.
(iv) Who trusts his thick skin
(v) Who intends not to refund
(vi) Who has made fortification against action of refund.
So he has to find someone who can part with his money. So he finds a lender near him (friend or relative)
Such loans are given by the persons :-
(i) Who has surplus money.
(ii) Who displays and boasts of such surplus money.
(iii) Who stupidly believe that there will be a refund.
(iv) Fails to realise as to why he alone (not bank) is being contacted for loan.
(v) Who has extreme trust on the debtor
(vi) who are either stupid or extremely greedy of the unusual (or illegal) rate of interest.
Such loans are always given
(i) Without documentation.
(ii) Without witness
(iii) Without guarantor.
(iv) During cordial relations
Soon after giving such loan :-
(a) Relations are no more remain cordial
(b) Business started by such money (easy money belonging to other) invariably fails.
(c) Such loans always sink and not refunded.
(d) Person seeking such refund suffers at legal process.
(e) Person seeking such refund legally or by persuasion is socially criticised.
Guest
(Expert) 16 April 2020
Frankly speaking, you don't have any cogent evidence that the amount given by you pertained to loan to your friend. Any payment by cheque, by itself does not become evidence of debt given by you to your friend.
You can get your money back only if your friend cum rogue changes his heart. Any legal trial can cause only waste of your additional money and precious time during court trial in the absence of any solid proof in your favour.
However, if you can procure a copy of his income tax return of the relevant year only that can prove to be an evidence, but only if he has shown that amount to have been received from you as a loan.
Otherwise, the recovery of loan may be only at the mercy of God and your luck.
P. Venu
(Expert) 16 April 2020
Since money is not problem, you can try your luck through a civil action.
Sudhir Kumar, Advocate
(Expert) 16 April 2020
Agreeing with Mr Dhingra I will also add that most likely your friend does not have capacity to pay, because :-
(1) why he could not avail education loan offered by various banks?
either the project was not viable or he was not creditworthy.
(2) whey he had to agree that not he rather his son will pay after he starts earning?
either he lacked paying capacity or had no intention to pay at all.
Sudhir Kumar, Advocate
(Expert) 16 April 2020
you said that you want your money back.
You may want anything on earth. But unfortunately chances of getting you rmoney back are very very remote.
You want to litigate you can but jurisdiction will be the place of cause ofaction (i.e. Hyderabad).
You said that you would rather donate money to beggar
You probably has done so.
Sudhir Kumar, Advocate
(Expert) 16 April 2020
You said he is no more your friend.
He was never your friend, If he was your friend you may not have charged interest from him.
rather you were also not his friend.
Raj Kumar Makkad
(Expert) 16 April 2020
You are most welcome as and when required. It is now your turn to act upon the advice given by the experts.
Rajendra K Goyal
(Expert) 17 April 2020
You said:
1. The "friend" is in fact not a friend anymore, since he has cheated me on a different matter recently.
Reply:
The experience / fact / knowledge is costly for you, got only after investing such a huge amount. Must have taught you a good lesion. Agree with the comments from expert Sudhir Kumar ji on such loans. It seems he was never a true friend, but was only for limited purpose.
Rajendra K Goyal
(Expert) 17 April 2020
You said:
1. The "friend" is in fact not a friend anymore, since he has cheated me on a different matter recently.
Reply:
The experience / fact / knowledge is costly for you, got only after investing such a huge amount. Must have taught you a good lesion. Agree with the comments from expert Sudhir Kumar ji on such loans. It seems he was never a true friend, but was only for limited purpose.
Rajendra K Goyal
(Expert) 17 April 2020
You said:
3. His son is a useless guy. He pretended like he is a sincere, dedicated student. But he is just a liar and rogue who, like his father, evolved into a cheater. I regret I have helped them for his "education".
Reply:
The knowledge at present is useless to prove and recover your debt. As advised above, even if you are lucky enough to have a decree against him, it would be difficult to recover the loan from him by execution.
If he was minor at the time of taking loan, it would create extra problem / burden on you to satisfy the court regarding justification / necessity / requirement of the loan.
Rajendra K Goyal
(Expert) 17 April 2020
You said:
4. His son has quit education abroad before COVID itself but remained there unemployed. There is no hope about him working sooner or later.
Reply:
In such case it seems he is not having enough income / sources to repay his liability. Any nationalized Bank would not extend educational loan facility for the said course at present.
Rajendra K Goyal
(Expert) 17 April 2020
You said:
5. I though he would get well educated and repay me after earning a job but I realize know that it is impossible. I have one question for you: I have moved to Bangalore recently from Hyderabad. I am sure my erstwhile "friend" will not repay me no matter what, so I have to file a civil suit. Can I file it in Bengaluru itself or do I have to file it in Hyderabad where he resides and where the cheque was given?
Reply:
You can hope for the best, still you have no surety in this case. However, case has to be filed at Hydrabad and not at Banglore. Considerable court fee with lawyers fee has to be paid in institution of the case.
Rajendra K Goyal
(Expert) 17 April 2020
You said:
Ten lakhs may be a huge amount for a common man, but not for me. I just want my money back because money to such a rogue is not well spent. I'd rather donate to a beggar.
Reply:
It is good you are able to bear this loss easily.
Though the following words are not legal, writing out from my personal experience, you have invested for a noble cause, God would return it to you in many folds. Definitely any one cannot get full benefit from such money if taken through misrepresentation / bad intention.
P. Venu
(Expert) 17 April 2020
The author's original query was very simple - how to get the money he had advanced to a friend for the latter's son's education. Learned experts offered suggestions in their best judgment.
However, the author, in his subsequent posting, has added further information that the borrower is no longer his friend and that the said person is an a advocate and a rogue and also that the son of that person is a useless guy. The author has also assured that the amount of ten lakh, unlike other people, is nothing for him.
It is really disappointing that many a learned experts have chosen to make multiple suggestions/comments such wild allegations/unverified information. It could be very much be the case that the other person (the borrower) has a different version as to the transaction and his credentials. Should it not be the norm and the principle that we should avoid comments touching upon the character and conduct of the third persons and our suggestion ought to be based on the legal elements and issues borne of by the facts posted by the respective author?
I may also permitted to bring it to the notice of the learned experts (almost all them are senior to me in legal profession as well as the contribution to this platform), it was just a couple of days that one among them had introduced the diktat to avoid multiple postings. It is highly regrettable that the noble norm is observed only in its breach.
Dr J C Vashista
(Expert) 17 April 2020
Long discussion on the no dispute/ issue, which is based on no "NO" evidence
Guest
(Expert) 17 April 2020
Dear Dr. J C Vashista,
May be there no issue, no dispute, no evidence in the case, but coronavirus and lockdown, jointly seem to have provided a great opportunity to some idle brains to manufacture multiple ideas and explanations to offer in reply to a brief query without any substance.
Not only a good space filling of the website can be noticed, but numerous junk mails are also dumped in to the mail boxes of the members, who try to reply the query. As of result, even the most important emails in the mail box get camouflaged by the uncounted number of such junk mails, as received from the LCI with the information about replies maid by the so called experts, but with very unprofessional substance offered by him. A substantial time is wasted in identifying the really important mails and delete all such junk mails.
I may not be wrong to assume that all these things may not find any place in to the head of the so called expert.
Anyway, his aim is fully served in earning substantial scores to maintain the top position in the hall of fame with majority of his unprofessional replies. I wonder, if he would have won any case in the court of law with such type of his unprofessional replies and pleadings.
Earlier, I stopped contributing my views on the queries for a long time only due to such type of gimmicks of the unprofessional fellows making the querists confuse about which opinion or view to believe and what not.
However, may that be useful or not in any way to solve the problem of the querist, of course, those ideas and presentations can prove to be of a worth to make good counter pleadings by the experienced experts, if they like.
Venkat
(Querist) 17 April 2020
My best wishes to all of you and your families,
Venkat
Rajendra K Goyal
(Expert) 17 April 2020
The querist,
Again repeat and as also pointed out by some of the experts, your claim is on very weak footings in absence of concrete evidences.
Raj Kumar Makkad
(Expert) 17 April 2020
I have not doubted the corretness of your query and have tried to advise treating it a genuine issue. I am of the view that one should not let the offender so easily. Karma is our duty. You need to file the civil suit. sometimes, luck also pays. You should not lleave the issue at any cost.
Rajendra K Goyal
(Expert) 22 April 2020
However, if you are bent upon to spend your time and money in litigation, you may proceed. Your only hope is any wrong step from other party. Sometime any wrong step from opponents change the game.
You have not mentioned in whose account the cheque from you was deposited. If it was in the account of son, there is all possibility, son may not be having paying capicity even if case is decided in your favor.
