Civil Procedure Code (CPC)

Excess Amount Claimed

practicing advocate

Dear Learned Members,

I am for an accused in NI Act case.  The case is that A is pvt., ltd., co., one of the directors has issued a 2 cheques of Rs.25000/- each but complainant has claimed in his complaint cheques amount and total due amount of Rs.150,000/- and odd.  IN my opinion complainant cannot pray for Rs.150,000/- as an alternative prayer.  Hence if any excess amount is claimed apart from cheques amount, complaint u/s 138 of NI Act is not maintainable.

If any ruling please upload it.  Thanks in advance.

 
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@adv. rajeev ( rajoo )

Directors has issued a 2 cheques of Rs.25000/- each  so his liability is totally 50000 /-RS.

 

How complaint claim 150000  RS  ?.Its not maintainable.

 

Rajivji,sorry to say that i dont have any judgment in my pc database.i think if the judgment (ruling ) is not available than on the record it seems that director liability is as per cheque is totally 50000/-RS.

 

If the complaint recover more amount than on the dishonour of a cheque, one can file a suit for recovery of the cheque amount along with the cost & interest under order XXXVII of CPC ,1908.


In notice is he demanded 25000 /- each? 

I got one judgment ( but not applicable specifically but give some idea,clue))in which the court said ,"a notice of demand which requires the drawer of the cheque to make payment of the whole of the cheque amount,  despite receiving a substantial amount against that very cheque, much before issue of notice, cannot be said to be a legal and valid notice envisaged in Section 138(b) of Negotiable Instrument Act. 




Attached File : 5 5 alliance infrastructure vs vinay mittal.pdf downloaded 89 times

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Legal Consultant

first: rest of the amount can be claimed in a separate suit... but i think LEGALLY ENFORCEABLE DEBT IN WHOLE(against which the cheques were issued) should be mentioned and in the relief part it can be claimed  on the grounds of avoiding multiplicity of proceedings, un-necessary harrasment along with wastage of money and time of both the parties..  It can be argued and court should allow it..if not then again a separate suit is always available...


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practicing advocate

Thanks to you both Sir,  I knew that complainant has to file seperate civil suit to recover the excess amount but I had no rulings, because now a days inexperience judges are appoiting they only ask for rulings they dont want to put extra effort to think.

 
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