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neelkant bakshi (service)     27 September 2008

stop payment despite sufficient funds in the bank

We issued one cheque for buying machine under agreement in writing that we will pay 45 days PDC and if machine works well we will pay.

And then lo of problems came in the machine, which we wrote to the supplier and they did some changes in the machine but despite repairs machine was not up to the mark.

So we stopped payment. on the day of stop payment our bank had suficient opening balance and other cheques got cleared and after that there was also sufficient closing balance.

now the party has sent us the notice to pay?

We were thinking of going to consumer court first due to bad quality machine supplied to us. but some one suggested us that as we have not paid for the machine, so can not move to consumer court...and now party has sent notice for cheque bounce/ stop payment with in 15 days of stopping the payment.

 

What should be our stand? should we fight against this or pay them?

do any one has legal reference in previous years? High court or supreme court?



Learning

 8 Replies

umapathi.s (Advocate)     27 September 2008

sir, to proceed or not to proceed  further it depends upon the terms of the agreement that you and your supplier had entered into. it is not true that you can't approach the Consumer Court since you have not paid any price. since you have promised to pay the price in full or in installment ,it would also be covered by the Act and on this ground there is no bar in approaching the court.further, to approach the consumer court, you should have purchased the Machine for  own use not for "commerical use"  otherwise you will not be covered under the meaning of consumer.  you can reply the notice by saying that the machine you purchased is not as per standard and let your supplier take  back the same. ball is in his court .

H. S. Thukral (Lawyer)     27 September 2008

Did you write to bank to stop payment before the payable date on the cheque? If so then complaint would not be maintainable. If the instructions to the bank were given on or after due date then complaint under sec 138 NI Act would be maintainble. However if the agreement is in black and white you have a strong defence in the case.


As or as the Consumer Court is concerned if you have not paid for the machine then why  should you  bother. Write to the supplier to take back his machine. After all the consumer court shall only order the same. Refund of money or replacement of machine. Your complaint in the consumer court shall be maintainable if the machine is for personal use  or the machine is being used for small business purposes to sustain yourself.

J. P. Shah (RTI & CONSUMER ACTIVIST)     27 September 2008

Bouncing of cheque is not for want of sufficient funds and hence sec 138 of NI Act will not be applicable. Even if case if filed, it can be pleaded out on this ground. Your advocate should reply the notice on this basis only.

H. S. Thukral (Lawyer)     27 September 2008

Sorry Mr. Shah 


A complaint shall be maintainable unless the cheque was post dated and bank was instruced to stop payment before due date. If you need SC judgments on this ask me.  

SHEKHAR MISHRA (public servant)     28 September 2008

Return    the   machine.

Ravi Arora (Advocate)     28 September 2008

you reply the notice


and write all your problems with the machine, and also write that you are ready to pay the cheque amount but frist as per terms and conditions repiar the machine and make it in working condition,i will pay the cheque amount, and you can also go to con. court

neelkant bakshi (service)     29 September 2008

please send some judgement copies.

ARVIND KUMAR (LAWYER)     30 September 2008

From the facts and circumstances stated the seller can file complaint that will run usually but it is buyer who has opportunity to defend himself on the ground of "LIABILITY".




 


For buyer he can move before consumer Court for defect and deficiency in service against the seller.




 


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