Under section 138 of n.i.act
Querist :
Anonymous
(Querist) 22 August 2011
This query is : Resolved
Dear all,
I purchased one flat on bank loan on 27.06.11, bank fully disbursed the loan to the promoter but that time the flat was incomplete. So, we talk to the promoter asking him to keep security deposit of Rs. 1,00,000/- towards completion of pending work with in two month from the date of sale. Accordingly he gives us the said security deposit on the condition that we will give him a post dated cheque to him and date of cheque will be 26.08.11 i.e. after two months from the date of sale and we execute an agreement to this effect mentioning that he will complete the pending work with in two months(pertinent to mention that the said promoter do not have the copy of the said agreement). But till date the promoter failed to start any pending work and flat still remain inhabitable condition, as the cheque date is 27.08.11 , I am anticipating that he will present the cheque on that day in that event I want to make stope payment of the said cheque, should I make it after keeping the sufficient fund in my account or insuffiency in my account does not matter as I am making it stop payment. Please advise me if I want to avoid 138 so what are the defense I should prepare and what steps to be taken by me in order to avoid the payment and/or to forfeit the money as the security deposit is enough to complete the pending work.So, if the promoter faile to complete the work it will be a better option to me to complete the work by myselfbut in the agreement there is no clause of forfeiture. In that circumstances plese advice me.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 22 August 2011
Appear when court notice is received and defend the case , you will win.In such cases we as a rule file counter criminal cases , so it depends on your local advocate to persue the matter properly.
ajay sethi
(Expert) 22 August 2011
why dont you issue builder notice for deficiency in service and file a complaint with consumer forum for failure to complete work on time?
Querist :
Anonymous
(Querist) 22 August 2011
Dear sir,
My querry is if I make stop payment without keeping sufficeient fund will that prejudice me.Whether Keeping sufficient fund in my account at the time of stop payment will that help me in trial to prove my bonafide or it does not effect.Merely making stop payment is sufficient.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 22 August 2011
If you have evidence for the fault of builder than no problem.
Even if the presumptions are there in NI ACT the accused has legal right to rebut them which is more simple , sure and easy., and complainant make mistakes on one or more points/ steps., in over confidence.
R.Ramachandran
(Expert) 22 August 2011
Issue a legal notice to the builder pointing out the facts - factum of the entire consideration having been disbursed to him directly by the bank; the building being not complete in all respects; your demanding and his giving to you the Security of Rs. 1 lakh - and your having given him post dated cheque to cover up the Security amount - hoping that he would complete the pending works by then; and pointing out that the pending works still not completed by him and that without completing the work he should not present the cheque though he can present the cheque if he completed the pending works. Call upon him to complete the pending works within .... (just prior to the date of the cheque) failing which you would be constrained to "Stop payent" of the cheque.
Ensure that you send this notice by Registered Post. If he does not complete the works then you will be safe to issue "Stop Payment" instructions to your bank on morning of the exact date indicated in the cheque.
Please keep sufficient fund in your bank account.
When he files Sec. 138 complaint, you can say that (i) the issuance of cheque was not towards any debt but towards security deposit; (ii) the stop payment was due to dispute with regard to non-completion of work (iii) you had sufficient funds when you stopped the payment.
Querist :
Anonymous
(Querist) 22 August 2011
Dear Mr. Ramachandran,
I agree with you and thanks for you reply, but local advocates are advising me to not to issue any notice and do not admit that cheque was issued in terms of completion of work and the reason behind such advise is if we issue any letter to complete the work, it is anticipated , that the o.p. will issue a reply stating that they have completed the work. So their advice is dont admit the reason of issuance of cheque and let the cheque be dishonoured on the ground of stop Payment(pertinent to mention here the promoter does not have the copy of the said agreement towards security deposit) and in addition to that in case of stop payment it does not attruct 138 , it is irrelevant that whether you are keeping sufficeient fund or not.
Kindly advice sir.
Thanking you
R.Ramachandran
(Expert) 22 August 2011
Mr. Ajai Sethi may like to give his views (in fact he has already suggested you to give a notice for deficiency of servivce) regarding the advisability of issuing notice in the lines suggested by me.
SAANJAAY GUPTAA
(Expert) 22 August 2011
Issue notice as per mr. Ramachandaran and also ask for completion certificate issued from municipalitity from where sanction plan granted and if he fail to provide make stop payment of your cheque by keeping sufficient balance in your account.
Guest
(Expert) 26 August 2011
Dear Anonymous,
I would like to suggest the following remedy to you:
Today is 26th and cheque is due for 27th. Better issue and deliver him a notice today itself that he should not present the cheque on 27th by appropriately quoting the reason of non-fulfillment of agreement in completion of the pending work. Also write him that he should present the cheque in future also only after consulting you. Deliver a copy of the notice to your banker also. If the builder has email ID, nust send that notice to him through email also in addition to the physical notice.
Secondly, adhere the advice of Mr. Ramachandran to keep the balance in your account, so that your cheque may not get bounced, in case the builder presents the cheque in spite of your forbidding him.
Thirdly, if the builder is able to encash your cheque in spite of forbidding him, you may have file a case in the consumer forum, as advised by Mr. Ajay Sethi, as appropriate legal compliance would be there on your part, while the deficiency would be there on the part of the builder. In that case you can also request the consumer forum for adequate compensation for non-compliance of the agreement terms within due time.
