138 ni act
VVS Ramaikrishna
(Querist) 29 March 2012
This query is : Resolved
PLEASE ADVISE
my lawyer filed 138 case against a limited company with me as GPA on behalf my wife but SPA document is on file.
Company is not made a party but four directors are made accused, out of which 3 are family members.
Accused argues that SPA cannot give evidence, company not made party, there are two notices - (1) under Order 37 CPC and later under (2) 138 NI Act, and cheque signed by authorised signatory (MD) of the company, SPA on record does not specify that I can file or give evidence in the complaint case, hence the complaint should be dismissed with exemplary cost. They filed some supreme court orders - 2008(4) JCC (NI) 415 in the criminal appeal no. 838 of 2008 - aneeta nanda vs m/s God father travels & tours pvt.ltd.
As my lawyer never attended any date nor prosecuted accused when they were without any bail for more than 8 dates and when my lawyer was not even giving me time, I had to conduct the case in person.
Court did not allow me to amend the complaint to rectify the defects as filed by my ex-lawyer.
court said i could cross examine the accused but did not allow me to cross examine as the accused did not lead evidence except filing their bank statement.
my ex-lawyer did not file certain vital documents like my bank statements etc. and court did not allow me to file.
It is more than four years since the matter is lingering in the court and court did not take any action despite several instances of illegality by accused persons.
Now the case is listed in the second week of april for orders/clarifications.
What options are open for me, can the experts advise me?
DEFENSE ADVOCATE.-firmaction@g
(Expert) 29 March 2012
Good case for defense lawyers.
You not being an advocate hence not conversant with nitty gritty of latches in legal proceedings.
SAINATH DEVALLA
(Expert) 29 March 2012
Dear Ramakrishna,
Company should be the A1,because others act on behalf of the company.Even if anyone of the Directors transacts business,all of them are liable.Why was your lawyer so neglegent.You should have reported the matter to the local bar association.Then why did'nt you take the services of another lawyer.There is nothing wrong in it.You are not well versed with legal knowledge.Immediately entust the case to a good lawyer.
VVS Ramaikrishna
(Querist) 29 March 2012
Thank you for your response.
Presently, I'm not in any financial position to engage a lawyer, hence I'm seeking help on this platform.
It was my belief that the court would look into natural justice. I've time till the second week of April.
If there is a remedy open, kindly let me know and I'll be grateful to you all.
ajay sethi
(Expert) 29 March 2012
case has been mishandled . if your lawyer was not attending you should have engaged another lawyer . did you pay his fees on time? how cna you not make the company a party to complaint .
the cheque was issued by MD for and on bhelaf of the company . if power of attorney is badly drafted and does not authorise you to give evidence on behalf of your wife your wife should have given evidence/
Shonee Kapoor
(Expert) 29 March 2012
Rightly said, the case is spoiled.
You may have to contend with the loss.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
VVS Ramaikrishna
(Querist) 30 March 2012
Even as I did not wish to broach on the subject, I have to (under the light of some replies received) state that I had paid Rs. 30,000/- as fee and another Rs. 2000/- for other related expenses. The manner in which the notice, SPA, the complaint and the affidavit were drafted, and also the manner in which he took up the proceedings by not attending at all and sending proxy counsel who did not bother to take part in the proceedings and the manner in which the accused persons were represented from day one; I am more than convinced that my lawyer had sabotaged the matter on purpose.
This above inference may hurt some right thinking lawyers but the hard reality that remains is that I am the victim.
The case was filed where i signed as the complainant and deponent.
and reasons for not hiring another lawyer was stated earlier.
Do the Experts have any options or citations to offer?
Guest
(Expert) 30 March 2012
The main accused was only the company, as the company was a legal entity, like an individual person, whereas the MD acted on company's behalf as its legal representative. Of course, as opined by Shri Ajay Sethi, the case was spoiled due to mishandling, may probably be due to the lack of appropriate knowledge of your lawyer about the company's legal position.
However, things also depended on the effectiveness of the language of the GPA of your wife in your favour.
May be some experts may not relish my views, but as of my frank opinion, your advocate seems to be liable for professional misconduct having not provided you due service even after charging fee of Rs.32000, as you haave stated that your advocate did not attend the case properly and used to send only a proxy. Of course there is no objection to send an associate, as a proxy to handle the case, but proxy must also be knowledgeable and effective to handle that case.
ajay sethi
(Expert) 30 March 2012
if you had paid fees then your lawyer ought to have attended court .
if 3 years have not elapsed file summary suit against the company .
R Trivedi
(Expert) 30 March 2012
If next date is for order, you cannot do much at this stage !! You have mentioned for clarification also, what kind of clarification ?
Also not much information is available regarding your wife getting the cheque from Limited company ? For what liability etc ??
VVS Ramaikrishna
(Querist) 30 March 2012
Thank you Experts for your opinions.
I made investments in this company but in the name of my wife. When this company failed to honor its commitments to me, I had to recall my investments and two out of the few cheques towards part payments bounced. The present cheque is still pending hence the 138 case in the court.
Unfortunately, its a bit more than four years now.
I have a few questions, if the experts may help;
1. In the matter of SPA on record ( complaint reads as GPA), i have been going through the citations filed on behalf the accused, that the Magistrate should ask for the complainant to make appearance and sign the complaint and authenticate the GPA or the SPA. Then the defects remain cured and s `142 NI Act will not have any bearing.
-- But in our case the Magistrate never did this and I feel that the interests of natural justice would need to be upheld by allowing the defects to be cured and should not deny this to us. My wife does not know any thing on the investments, defaulted commitments of this company etc. as she never ever met any of this company people let alone discuss any investment plans.
---- Would the Experts help me with any procedure that can be followed before the final order is passed? Should I move an application much before this date scheduled for orders/clarifications?
Also, there are documents like the bank statements etc. that need to be brought on record, HOW CAN I BE ALLOWED TO DO SO?
CAN i FILE ADDITIONAL WRITTEN ARGUMENTS ALONG WITH RELEVANT DOCUMENTS?
ALSO, HOW A NOTICE UNDER ORDER 37 CPC serves as notice u/s 138 NI Act when a notice u/s 138 was specifically sent later and invite limitation on time to file the case?
I read the citation filed by the accused persons on company not being proceeded against. That citation is not a concluding order and quotes several orders with differing views and the final order was that the matter be referred to the chief justice.
--- there is no law that states that the directors responsible for the conduct of business can not be proceeded if the company itself is not proceeded against.
---- s. 141 also states that any officer or director or manager etc. can be proceeded against even if company is not proceeded against.
I personally felt that it is misconduct on the part of the lawyer who failed to represent my case but that is not my issue and I have no intentions to make it an issue. Perhaps that is the way some so called lawyers do their work although it leaves an adverse effect on the otherwise noble profession. So, if you please, let this be the last reference on THIS aspect.
Nobody likes to lose their hard earned money specially someone like me who is turning 63 next month and without income source at present.
V R SHROFF
(Expert) 30 March 2012
If it is at Final Stage, you came very late before LCI.
Co.shd be A1.
POA cannot depose [SC]
case if mismanaged from the beginning till date, even appeal will not help.
Court, of it's own cannot cure defects, or try for natural justice without evidence.
Though we sympathizes with you at your age of 63 without income, I believe your adv should have done, what he is bound to do.
R Trivedi
(Expert) 02 April 2012
Actually incompetence has no legal remedy !!
Two otherwise noble professions, that of doctors and lawyers, are badly commercialized. And unfortunately in both the cases human beings suffer.
