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Nagendra*** (Manager)     29 August 2012

Pronote vs (cheque+loan agreement)

Esteemed Lawyers....Through some like on this

Borrower has signed a Loan Agreement on a NJ stamp paper  and issued post dated cheques. The Chq details were mentioned in the Loan Agreement.  Is this documentation sufficient to file a NI 138 case against the borower.

Is it also required to have a Pronote signed by the borrower?



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 10 Replies

Adv Rohit Dalmia 9324538481 (Lawyer)     29 August 2012

Dear Nagendra,

the person or the company who had given loan has the valid NBFC License???? if, yes then only the loan could be given by the person or the Company. failing which the borrower might challange the validity of the agreement to escape the prosecution under the sec. 138 of the negotiable instrument act.

 

Therefore, you need to confirm the facts before taking the opinion.

 

Regards,

Advocate Rohit Dalmia

9324538481

Mumbai 

Nagendra*** (Manager)     29 August 2012

Let me put this clearly,   One of my friend who was in need of money , borrowed money from me. He has signed a loan agreement to that extent & issue post dated cheques.

I was advised to take a Pronote from the borrower aswell. Is this required?

Adv Rohit Dalmia 9324538481 (Lawyer)     29 August 2012

Then you do require promissory note to be signed by your friend.

 

If you wish, you may share the agreement copy for checking out whether the agreement is valid or not. since, you don't have money lending license from the Reserve Bank of India.

 

Regards,

Advocate Rohit Dalmia

9324538481

Mumbai

Nagendra*** (Manager)     29 August 2012

Thanks Rohit for your response. I am attaching the agreement format.


Attached File : 754777799 loan agreemen 10 lakhs templete.doc downloaded: 497 times

Nagendra*** (Manager)     29 August 2012

Thanks Rohit for your response. I am attaching the agreement format.


Attached File : 754777799 loan agreemen 10 lakhs templete.doc downloaded: 270 times

Adv Rohit Dalmia 9324538481 (Lawyer)     29 August 2012

I have gone through the agreement and its contents. 

The agreement is not valid and has no standing in the court.

you require a proper agreement which has legal validity and maintainability in the court.

 

Regards,

Advocate Rohit Dalmia

9324538481

Mumbai

Nagendra*** (Manager)     29 August 2012

Thanks for you prompt response.  Can you please share a valid Loan Agreement format?

Adv Rohit Dalmia 9324538481 (Lawyer)     29 August 2012

Nagendra,

 

There is no standard format for loan agreement. But i have developed my own format which is used by the few corporates in india and has a validity in the court. 

I could provide you the agreement, but there shall be fees for the same.

 

Regards,

Advocate Rohit Dalmia

9324538481

Mumbai

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     01 September 2012

Agreement or no agreement it will be contested by any defense advocate.  If no agreement it will be doubtful, if agreement it may attract money lending act.

 

In John K. John v. Tom Varghese & Anr. [JT 2007 (13) SC 222], this

Court held:

 

The High Court was entitled to take notice of he conduct of the parties. It has been found by the High Court as of fact that the complainant did not approach the court with clean hands. His conduct was not that of a prudent man. Why no instrument was executed although a huge sum of money was allegedly paid to the respondent was a relevant question which could be posed in the matter. It was open to the High Court to draw its own conclusion therein. Not only no document had been executed, even no interest had been charged.

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     01 September 2012

 The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its

failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument.

FROM A SUPREME COURT JUDGMENT.

 


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