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R.V.PRASAD (Advocate)     08 September 2009

LIMITATION OF PROMISSORY NOTE TO FILE SUIT

Dear Forum Members,

I got a promissory note which is dt.30.08.2006, i issued legal notice on 5-08-2009, which got return back refused.Can I file a suit after 30-08-09  along with citations of APHC/SC, THE NOTICE RETURNED ON 18-08-2009...



Learning

 32 Replies

A V Vishal (Advocate)     08 September 2009

Mr Rokkam

Did the noting and protest of the promissory note take place. Please Clarify

R.V.PRASAD (Advocate)     08 September 2009

no noting and protest got from promsory, exept the refusal of legal notice on 18.8.2009, wether i can file suit .

R.R. KRISHNAA (Legal Manager)     08 September 2009

The limitation period (3 years) has expired as on 30.08.2009 and hence you cannot file a suit.

A V Vishal (Advocate)     08 September 2009

Krishna

The limitation of three years is for the Promissory note plus there is an additional 3 days of grace for payment. During which period the notice can be served calling the debtor to make the payment. Now unfortunately 30.08.2009 is a sunday. The notice was sent on 05.08.2009, the lapse of 2 days will not make any difference, the querist can seek condonation and file the suit for recovery of money.

105.      Reasonable time.
            In determining what is a reasonable time for presentment for acceptance or payment, for giving notice of dishonour and for noting, regard shall be had to the nature of the instrument and the usual course of dealing with respect to similar instruments; and, in calculating such time, public holidays shall be excluded.
 
106.      Reasonable time of giving notice of dishonour.
            If the holder and the party to whom notice of dishonour is given carry on business or live (as the case may be) in different places, such notice is given within a reasonable time if it is despatched by the next post or on the day next after the day of dishonour.
            If the said parties carry on business or live in the same place, such notice is given within a reasonable time if it is despatched in time to reach its destination on the day next after the day of dishonour.
 
107.      Reasonable time for transmitting such notice.
            A party receiving notice of dishonour, who seeks to enforce his right against a prior party, transmits the notice within a reasonable time if he transmits it within the same time after its receipt as he would have had to give notice if he had been the holder.

 

A V Vishal (Advocate)     08 September 2009

But in the instant case, the querist has not got the noting and protesting done, advise of other learned members for guidance

R.R. KRISHNAA (Legal Manager)     08 September 2009

Vishal

 

I agree with you regarding the 3 days grace period.  But still it is time barred.  I dont understand how condonation of delay for suit is applicable.

 

I also look forward for other learned experts to reply to obtain clarity in the matter.

R.R. KRISHNAA (Legal Manager)     08 September 2009

Vishal,

 

Please refer section 5 Limitation Act:  I think it applies only to applications and appeals and not for suits:

 

 

5.         Extension of prescribed period in certain cases.

            Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908  (5 of 1908), may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.

            Explanation.-The fact  that the  appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the  prescribed period  may  be  sufficient cause within the meaning of this section.

 

I like to have your opinion on how delay can be condoned in such circumstances?

Shivasurya (Lawyer)     08 September 2009

Mr. Rokkam, you cannot file the suit after 30-08-2009. No condone delay petitions are entertained in money suits. my sugesstion is try to get any endorsement/signature of the borrowee on backside of the promissory note, then take fresh cause of action from that date. Note: the date of endorsement on the back of the promissory note also mention before the date of 30-08-2009

Kiran Kumar (Lawyer)     08 September 2009

m finding concurrence with the opinion of Krishna....lets find out some judgment in this context.

PALNITKAR V.V. (Lawyer)     08 September 2009

In fact much depends on the contents of the pro note about the time of payment. May I request Rokkam to state something about this. Was the sum payable at some fixed time or no time was fixed. Some times sum is made payable at sight or on demand. Limitation varies depending on the condition of payment. So please clarify.

R.V.PRASAD (Advocate)     08 September 2009

It is ondemand promissory note for Rs.15,000/-

PJANARDHANA REDDY (ADVOCATE & DIRECTOR)     09 September 2009

MR KIRAN AND MR PALNIKAR RETIRE JUDGE MAY RESPOND FOR THE ABOVE THREAD REPLY GIVEN BY ROKKAM

vinjamuri ranga babu (advoctes/attorneys)     09 September 2009

hi,

you cann't file. kindly go through sec 12 of limitation act

Adinath@Avinash Patil (advocate)     11 September 2009

Mr.Rokam'

All above members clarify the actual situattion , as  your promissory note is not within limitation.

In my opinion you can file recvory suit on promisory note along with delay condonation application,


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