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Shiva (NA)     31 August 2013

Issued a check and stopped payment

Hi,

I purchased a property(in Hyderabad) in April 2012 for which I paid some money earlier (in 2007) and issued 4 checks for the remiaing money to the builder to be cleared in the next 3 months. Later in June 2012, I realized that the builder violated rules by constructing illegal unit in the parking lot, did not provide parking to my unit. The sale deed does not mention anything about the parking lot (The bulder drafted the sale deed and I just want to get the property registered as it was already more than 5 years since he took my money). It was a verbal agreement that he will assign a parking lot for my unit soon. We had a seperate agreement on a 100 Rs stamp paper regarding the checks in April 2012 with check numbers and dates clearly mentioned. Two of the checks were encashed by the builder. But, I called my bank and asked to stop payment on the remaining two checks as he was not doing anything regarding the parking lot. I asked him to clear issues rearding parking and other minor things like providing link documents, provide generator as he promised earlier. I said I will pay him the money with out fail if he does these things. Here the issue is all these are verbal. But as per real estate laws and rules, he is not supposed to construct a dwelling unit in the parking floor, which he did and sold to another party. Now he is demanding the payment from me by sending the legal notice. I am currently not at my permanent address in India and living abroad. The postman did not give the notice to my parents who live at the permanent address I mentioned in the sale deed. I am not sure what is there in the legal notices.

I tried to resolve this amicably by calling him but he is not responding and says he has nothing to say and will not clear issues rearding parking. Here are my questions.

1. As I issued a stop payment instructions to my bank, will this become a criminal offense? Remember I have a reason for doing so. I have no intension of fraud here. 2. As I am not residing in the permanent address anymore, and the postman refused to give my parents the notice,( I think once from the lawyer and another time from megistrate)  what can I do legally?

3. If this is a criminal offense, what are the consequences, can the police come and arrest me when I am in India? What can I do to avoid that now?

4. Can I send the builder any legal notices explaning the reasons for stop payment and asking to clear the issues?

5. I know it can take years if this goes to the court. Does my foreign travel and job get affcted due to this?

6. Finally, can I give a poower of attorney to someone(like my father) in India from a foreign country and ask them to send notices, appear for the proceedings on my behalf.?

7. There are other people in the same apartment complex who has the same issues as me(not regarding the checks but parking, generator and other issues) and they are all very dissatisfied and angry with the builder. -This point is just to establish the character of the builder.



 1 Replies

Manish Kumar Gupta (Deputy Legal Manager)     31 August 2013

Dear Sir,

Please find replies to your queries below -

1. Issuing a Stop Payment instructions to Bank, if you have valid reasons, can't be treated as offence for Cheque Dishounour Case, However you have to proove your reasons valid.

2. However the notices werenot served on you but as you said that these notices received from Adocate/Court and that may be treated served on the versions of the postman, mentioned on the returing the notices. You are also suggested to check if the Builder has presented those cheqes for clearance, When those cheques got dishonoured, acording to that you can assume on what stage the proceedings against you, may be pending. It is suggested to check/verify with the person's (if Possible) came for serving the notices (Postman/Local Police Person), So that you can be aware of if any proceedings are initiated against you, In which court they are pending,  and at what stage. Thereafter you are in a position to defend that matter in court where it may be pending with the help of Advocate.

3. It can be, but it can only be presumed when it will be clear that how many proceedings are pending against you and on what stage.  There may be chances that these proceeding are only at initial stages, which can be defended easily.

4 Yes it can be done, but it is suggested to do, only after confirming the proceedings against you.

5. It may affect, according to proceeding against you.

6. if any criminal complaint is pending (Cheque Dishonour) against you, that you can't give POA to any other person, since you are accused, however you can defednt that matter with the help of advocate, and you needs not be present on all the hearings. However in Civil Cases you can give POA to anyone to defend/initate the proceedings.

7. It may be help you to justify, your reasons for stoppng the payment of cheques. You can also initiate Proceeding against Builder with the help of these other occupants in the soceity for deficiency in Service.

It is also suggested to contact any advocate of your confidence, who can help in all. You should not avoid the proccedings that may become severe in if not addressed properly.

Thanks..


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