Upgrad LLM

Section ni 138..notice

This query is : Resolved 
 


Querist : Anonymous (Querist)
13 January 2012

I have sent NI notice to X, later he committed to pay the amt.. later denied it... time frame passed for filing legal case.

I have redeposited that chq and again sent the legal notice of NI 138.

their adv has replied i cannot send NI notice twice... pl help how to get out of this and file the case.


V R SHROFF (Expert)
13 January 2012

Their Advocate is Right, you were fooled by X.

Advocate. Arunagiri (Expert)
13 January 2012

You can send notice after the representation. It will be deemed as first notice only after the representation of the cheque.

sankar narayanan Online (Expert)
13 January 2012

I agreed with shroof once he commited to pay so that time u should have taken other cheque

Kiran Kumar (Expert)
13 January 2012

the second notice is not maintainable...

ajay sethiOnline (Expert)
13 January 2012

file a summary suit now for recovery of money . no complaint for dishonour of cheque is maintanable

Adinath@Avinash PatilOnline (Expert)
13 January 2012

file recovery suit

Raj Kumar MakkadOnline (Expert)
14 January 2012

The only remedy available for you is to file a civil suit for recovery on the basis of cheque. Second notice is not maintainable.

Advocate Bhartesh goyalOnline (Expert)
14 January 2012

Yes complaint u/s 138 of N.I Act is not maintainable on basis of notice issued second time by you.Now only suit for recovery of money can be filed.

prabhakar singh (Expert)
14 January 2012

138 is gone now hence go far summary suit.

Deepak Nair (Expert)
14 January 2012

You are rightly advised by the experts above. Filing summary suit is the only remedy available to you now.

Shailesh Kr. ShahOnline (Expert)
14 January 2012

pl help how to get out of this and file the case.

Answer: now, there is only solution to file summary suit.

Devajyoti BarmanOnline (Expert)
14 January 2012

It is suit for recovery of money, no 138 case is possible.

Advocate. Arunagiri (Expert)
14 January 2012

You can take the help of any Advocate of your area, for filing the case.

You say the drawer had committed to pay subsequent to your notice after the first presentation. So, you have the liability endorsed afresh.

If the fresh promise is not honoured, you can represent the cheque, issue fresh notice, and prosecute him.

Supreme court had allowed the cases on second notice on certain conditions.

Please refer:-
Dalmia Cement (Bharat) Ltd vs M/S.Galaxy Trades & Agencies Ltd. AIR 1998 SC 3043

R.RamachandranOnline (Expert)
15 January 2012

Dear Mr. Arunagiri,
In the case cited by you, M/s. Galaxy Traders had taken a stand that they only received an empty envolepe - and not any notice. Since the first notice was not served / issued in the eyes of law, the question of any subsequent notice in effect would be the first notice. Hence the decision. If only Galaxy Traders had said that they had received the notice in the first instance, then Dalmia could not have issued the second notice. The decision of the SC would be completely different.

V R SHROFF (Expert)
15 January 2012

RR is Right.

Seems Plan by Adv of M/s. Galaxy Traders was a foolish one.

People do not plan to fail, THEY FAIL TO PLAN

INITIAL PLANNING , STAND ETC ARE VITAL.

Slight mistake, and cannot be cured even till Supreme Court.

Shonee KapoorOnline (Expert)
15 January 2012

I think the 138 case is not maintainable.

Regards,

Shonee Kapoor
harassed.by.498a@gmail.com

Advocate. Arunagiri (Expert)
15 January 2012

Mr.Ramachandran and learned friends,

I have gone through various case laws on the second notice. Every case is having its uniqueness and is being decided based on its merits. New ruling is coming out every day.

I just pointed out that in some cases the Supreme Court had allowed the 138 case, with second notice.

Likewise there are chances to allow in this case also, as the accused had committed endorsed his liability after the first notice.

In fact the NI Act does not speak about the representation and notice after that. New decisions are coming based on the new facts.

Even in Galaxy traders case, the Supreme Court could have concluded that the post which was sent is not empty, (under the presumption of General Clauses Act) it contained the notice sent by the complainant.

So, in this case, the accused received the notice, committed to pay and failed to pay. By this the liability is renewed. So, the representation of the cheque after the failure to honour the commitment, gives a fresh room for the case. So, the notice after the representation is valid.

Even at this point, I strongly feel that this case will be allowed.

R Trivedi (Expert)
18 January 2012

File the civil case under Order XXXVII, this is very efficient way to recover the dues if you have valid cheque with you. Mention all the facts even the fact that how you were fooled.



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