Notice under Section 138 of N.I. Act.

Querist : Anonymous (Querist) 09 January 2011 This query is : Resolved
A Non Resident Indian has booked a flat with a reputed builder and has availed housing loan with the Bank by entering Triparti agreement. Subsequently, the banker has paid 90% of the loan and receiving the Pre EMI's from the above person.NRI has deposited the Post dated cheques with the Banker. Since the builder has failed in fulfilling its obligations, the above person has cancelled the unit. Builder informed the NRI that it will refund the amount shortly and the said fact was communicated by the NRI to the Banker and requested them to not to present the cheques available with them as the builder accepted to pay the amount covred under the tripartee agreement and also received a reply from the banker acknowledging his intimation but, the Bank has presented the cheque with his banker and after dishonouring the cheque it has issued notice under Section 138 of NI Act.
Queries:
Can the Banker present the above mentioned cheque when it was specifically pleaded to not to present the cheque.

Is it will attract the provisions of the Section 138 N.I.Act.

I am requesting you to pass on the latest supreme court judgements covering the above issue.

Follow Query

Report Abuse

Devajyoti Barman (Expert) 09 January 2011
The answer is yes in both the cases. The only defence you have when you would be given opportunity to depose yourself in eidence where you could represent true story.

A V Vishal (Expert) 09 January 2011
Can the Banker present the above mentioned cheque when it was specifically pleaded to not to present the cheque.

Ans. No, the Banker cannot present the cheque when there is a specific instruction from you which is duly acknowledged by the Bank.

Is it will attract the provisions of the Section 138 N.I.Act.

Ans. You need to speak to your lawyer and prepare the reply to the bank's notice, only after which you can be advised based on the bank's response. Although technically the case is in your favour however, you will have to fight it out in the court if the bank goes ahead and files a case.

A V Vishal (Expert) 09 January 2011
Before encashment notice issued not to present the cheque yet the payee or holder in due course presented the cheque to bank and the same returned on instruction, Section 138 of Negotiable Instruments Act is not attracted. (K.K.Sidharthan Vs T.P.Praveena Chandran & Anr.) 1996(2) APEX COURT JOURNAL 555 (S.C.)

adv. rajeev ( rajoo ) (Expert) 10 January 2011
When specific information of not to present the cheque then NI act is not applicable. Reply to the notice and contest the case. You will have to lead your evidence. If banker admits in his cross examination regarding the prior information of not to present the cheque then your evidence is not necessary.

Amit Minocha (Expert) 10 January 2011
the cheque cannot be stopped from presentation and if it gets bounced it would definately be an offence u/s 138 NIA since it was issued in discharge of a legal debt (loan). No benefit of prior information to bank as the bank has already paid entire amt to the builder. you can take back money from builder and then repay the o/s amt to your bank but certainly you cannot stop to clear emi cheques till the time the banks has its debt outstanding to your name.

malipeddi jaggarao (Expert) 10 January 2011
Perfect advice from the Expert Amit Minocha. No more to add.

Advocate. Arunagiri (Expert) 11 January 2011
I agree with Mr.Amit.

Previous

Next

You need to be the querist or approved LAWyersclub expert to take part in this query .

Click here to login now

Similar Resolved Queries :

Ask Query
Unanswered Queries