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Negotiable instrument act

This query is : Resolved 
 

Online (Querist)
24 September 2020

Complainant given loan of Rs. 4925000/- to accused son by RTGS who executed promissory note and her mother sign the said promisory note as gurantor.
now accused son issued cheque of Rs. 5000000/- which got bounced. then complainant approached his mother who also given cheque for rs. 5000000/- towards same liability which also bounced.

(1) should i give notice to both of them u/s 138 of N.I Act ?

(2) demand amount will be 5000000/- or 4925000/- ?

(3) will it be correct if i say in demand notice " I therefore request to both of you to arrange payment of Rs. __________ ? either jointly and/or severally within 15 days from the receipt of this notice.


Advocate Bhartesh goyalOnline (Expert)
24 September 2020

( 1 ] Two cheques bounced one issued by son and another issued by mother so issue two separate notice to each son and mother.
( 2 ) Demand Rs 5000000/- cheque amount.Towards principle Rs 4925000/- + int eerst .
( 3 ) Separate notice so separate demand .

BHARTI KOTHARIOnline (Querist)
25 September 2020

Separate notice means I have to demand cheque amount from mother as well is from sun ?

Advocate Bhartesh goyalOnline (Expert)
25 September 2020

Yes,you have to issue separate notices to son
borrower and mother guarantor. as both issued separate cheques yo you.

Dr J C VashistaOnline (Expert)
25 September 2020

Mr. Bharti Kothari,
You are a practicing lawyer as mentioned in your profile.
Can you demand money from the "son" of accused stated to have executed promissory note for "X" amount ?
Further you have stated "accused son" issued cheque which got dishonoured, are you sure drawer of the cheque has a legally enforceable debt as required by proviso to Section 138 of the Negotiable Instruments Act, 1881?
Are you sure whether a "promissory note" contain or require a "guarantor" as stated by you that mother stood guarantor in the instant case?
Prima facie it is an hypothetical question.
Thanks & regards

Dr J C VashistaOnline (Expert)
25 September 2020

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BHARTI KOTHARIOnline (Querist)
25 September 2020

IF I ISSUE SEPERATE NOTICE THEN i HAVE TO FILE SEPERATE CASE WHEN IN FACT MY CLAIM IS ONLY 4925000/-

Rajendra K Goyal Online (Expert)
25 September 2020

You said that the promissory note was guaranteed by mother, promissory note does not have a guarantor. If any guarantor is to be made liable, It needs to be executed in favor of guarantor and the guarantor can endorse / negotiate it in favor of lender.

You have the option to file suit based on pronote court fee has to be paid ad-volerm.

Debt is one, after issuing of the cheque, mother has entered in the shoe of lender, you may proceed against the mother as the son failed to pay back and liability of guarantor has arisen. Mother may recover debt from son at its own level.

You have the option to file cheque bounce case against son as the status of guarantor is doubtful.

P. Venu Online (Expert)
25 September 2020

Admittedly there is only one legal enforceable debt. As such, how there could be two notices and two proceedings. Please note that the proceedings under 138 NI Act are required to be proved beyond reasonable doubt. Such omnibus proceedings are bound to be counterproductive.

Isaac GabrielOnline (Expert)
27 September 2020

Only one loan.So, pursue with one notice,which will suffice.

Rajendra K Goyal Online (Expert)
29 September 2020

Agree in the given circumstances only one claim should be filed. Payment liability may be jointly or severally.



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