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Sumit Aggarwal (Advocate)     21 September 2014

Procedure filing recovery suit order 37 cpc cheque bounce?

Hello Everyone,

 

I am young practicing advocate in Delhi District Courts.

 

I have filed a case for my client u/s 138 of Negotiable Instrument Act, in May '2014. The Cheque amount was Rs. 50,000/- against certain bills. The accused is appearing in this matter and taken bail.

 

In August '2014, my client issued a legal notice to the same accused (against whom case u/s 138 case filed in May' 2014), for further bouncing of cheques. The cheque amount is Rs. 22,500/-. In reply to this legal notice, the accused has admitted the supply & cheques which are subject matter of case pending u/s 138 NI Act filed in May;2014.

 

My query is:

 

  • kindly suggest me the procedure to file Recovery Suit under order 37 CPC and it will be kind enough if someone sends me the Sample Format of Recovery Suit under Order 37 CPC,
  •  
  • Do I need to send any mandatory legal notice to initiate proceedings under Order 37 CPC?
  •  
  • I have annexed all the Original Bills, Original Cheques and Original Documents in the complaint case u/s 138 NI pending before Ld. Magistrate filed in May' 2014. Under these circumstances what documents to annex in Civil Court because originals are not with me.
  •  
  • Can a Civil Court decree a suit on the basis of Photocopies of Bills and Cheques; if not; what procedure do I need to adopt.

 

Thanks for an early reply.



Learning

 5 Replies

Hardeep (Business)     21 September 2014

AFAIK, for the same cause of action you can not file multiple suits.

 

So, both suits - one under Ord. 37 and another under S.138 NI Act can't proceed simultaneously.

 

Seniors may please comment / correct.

N.K.Assumi (Advocate)     06 October 2014

With due respect to Hardeep's opinion, I am of the view that the two statues are distinct, one is civil and the other criminal. As such Order 37 CPC can be invoke to enforce the agreement apart from action under 138 NIA. More over pendency of civil a dispute will not oust the Jurisdictions of Criminal Court from taking cognizance of an offence on a complaint under 138 NIA.

Kundan Kr. Singh (Advocate)     21 January 2015

Mr.Agrwal pls read Civil Procedure code Appendix.

Tushar Jha (Advisor)     20 August 2016

You cannot file another lawsuit under Order 37 of C.P.C. as the principle of Res Judicata would be applicable.

However, under Section 138 of Negotiable Instruments Act, 1881 the accused can be sentenced to 1 Year in Prison along with fine which may extend to twice the amount of the cheque, or with both.
Hence, the issue of money recovery is aptly dealt in Negotiable Instruments Act, 1881.
As far as issue of 'Interest' is concerned, the court has power to award interest on the amount due under the Instrument(Cheque). Kindly refer Section 79 & Section 80 in the Negotiable Instruments Act, 1881.

Refer to 2 recent High Court Judgments :-

1. 
Delhi High Court in M/s. Jayaswals Neco Ltd. vs Union Of India And Anr. on 2 August, 2016
    https://indiankanoon.org/doc/48145663/

2. Madras High Court in N.Raju vs S.Muthusamy on 23 June, 2016
    https://indiankanoon.org/doc/113148195/‚Äč



Disclaimer : Please note that the above is not a legal advice, kindly consult a senior legal practioner to verify the information/clarification given by me.

vijay   06 December 2017

In my opinion  proceedings under 138 and order 37  are based on diffrent cause of actions and if  the ingridents for 138 are made out then  actions cab countinue in parellel.

thanks 

vijay tangri


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