What can i do, if my payee dishonored the chq issued to me
Kiran
(Querist) 18 February 2013
This query is : Resolved
Hi, I have booked a Flat in pune in 2010, with a small builder who has a friendly relation with me, at the time of booking he was mutually agreed to give me full refund of my booking amount in case of any issue- i.e any fund problem or non clearance of loan etc.
now after almost two years I am having some family problem an I can not continue this deal so i requested for refund of my booking amount of Rs. 1.25 lakh which I have given him in 3 installments. as discussed earlier he agreed to give refund and issued 3 chqs to me,
but some how first chq of Rs. 25k has been returned due to insuff.funds, then he said represent it again. but i am worried and i think it will again get returned..
Pls suggest me necessary action and how law can help me in this case
prabhakar singh
(Expert) 18 February 2013
Either rely on him and represent the cheque for recollection if the cheque is still with in validity period or get in touch of a local lawyer to issue him notice demanding the sum of the cheque to be paid to you with in 15 days from the date of service of said notice failing which a complaint could be filed with in a month and civil small cause suit would also be possible.
But it appears if he were not to refund your deposit ,he could have straight away denied or might be making false promises and might have not issued cheques towards refund of your deposit.By the way what were the dates and mode of your deposits and what are dates on cheques.The gap between the cheques and your deposits must not exceed even a single day beyond three years.
ajay sethi
(Expert) 18 February 2013
you have not mentioned details as to date of issue of cheque . whether period of 3 months has expired or not . answer queries raised by prabhakar singhji
Kiran
(Querist) 19 February 2013
Thanks a lot for all the valuable reply. I really appreciate the suggestions, I was not expected such a quick action.
Answers to Queries :
1 - Mode of Deposit - partially by Chq and remaining by Cash
2 - Date of Deposits - 1st - 25k by Chq in June 2011, then 60k by cash in Sep 2011, then 20k and 20k by cash in appx 2-3 months interval.
3 - He issued 3 chqs to me respectively 25k and 50k and 50k
4 - among those 3 chq he gave date 10 feb 13 for 25k's chq, rest dates still not given so I m having 2 chq of 50k without dates.
Kiran
(Querist) 19 February 2013
Special Thanks to Prabhakarjee.. for detail suggestion, I am agree with you about reading of his intention as he issued chqs to me is looks like he is not denying to refund my deposit.. but then there is no meaning to dishonoring the chqs as it would have bad impression to his bank account and unnecessary penalty to me as well. after reading your suggestion I have some doubts -
1 - is it mandatory to issue him notice within 15 days after chq returns ??
2 - How much it will cost me to take a legal action against him and what will i get in return is that only my deposit or anything additional to this
3 - There was a clause on booking letter that "In case of cancellation only 75% of deposit will be refunded" but in good faith and friendly relation he is now ready to give full refund, if I take legal action he may give me only 75% of my deposit, so what would u suggest me in this scenario?
ajay sethi
(Expert) 19 February 2013
1) legal notice has to be issued within 30 days of receipt of intimation of dishonour
2) no fixed amount can be mentioned as fees vary from lawyer to alwyer
3) if he is willing to give full refund dont take legal action . legally he can deduct 25%but yet he si willing to pay you full amount .
4) meet him once a fortnight for payment . dont present cheque without his approval .
prabhakar singh
(Expert) 19 February 2013
"1 - Mode of Deposit - partially by Chq and remaining by Cash
2 - Date of Deposits - 1st - 25k by Chq in June 2011, then 60k by cash in Sep 2011, then 20k and 20k by cash in appx 2-3 months interval. "
HOPE HE HAS ISSUED RECEIPTS AGAINST THESE DEPOSITS AND YOU ARE KEEPING THEM SAFE.
"3 - He issued 3 chqs to me respectively 25k and 50k and 50k
4 - among those 3 chq he gave date 10 feb 13 for 25k's chq, rest dates still not given so I m having 2 chq of 50k without dates. "
AMONG THESE THREE CHEQUES ONLY ONE OF 25K UPON WHICH HE HAS PUT THE DATE IS VALID.
THE REMAINING TWO CHEQUES ARE INVALID UNLESS HE DATES THEM TOO.
I REMIND YOU THAT AS PAYEE YOU CAN NOT LEGALLY FILL ANY DATE ON THOSE TWO UNDATED CHEQUES OTHERWISE IT WOULD AMOUNT TO TEMPERING.
THEN WHAT COMES OUT NOW IS THAT YOU ARE NOT IN POSITION TO TRIGGER ANY LITIGATION, MUCH LESS A CRIMINAL COMPLAINT, HENCE BE CORDIAL AND POLITE TO TAKE THE DEPOSIT OUT INTELLIGENTLY.
THIS IS WHY I INSIST PEOPLE TO COME WITH NECESSARY AND RELEVANT FACTS SO THAT TRUE SITUATION MAY BE JUDGED AND RIGHT ADVICE CAN BE GIVEN.
DO YOU SEE HOW MY ADVISE HAS GONE CHANGED IN CONTRAST OF THE EARLIER.?
Kiran
(Querist) 20 February 2013
Yes he has issued Receipts against every payment and i have kept them safe with me. but now as my booking is cancelled he is asking me to submit those receipts along with booking letter back.
I understand that undated chqs are invalid, but what if I put the dates with his verbal permission, same thing he informed to me at the time of issuing chgs as we generally interact on mobile because of his busy schedule, then will it be still consider as tempering.
prabhakar singh
(Expert) 20 February 2013
In my view, it would be called tempering as it would not be possible for you to prove that you filled the dates under his oral instructions unless he admits that fact and in litigation the tendency is to deny as much as can be.Section 138 N.I.Act is penal provision and too much technical to fasten liability on the drawer.
Receipts should not be handed over back unless all payment is received back as they are backbone of your deposit,retaining them make you able to realize at least 75% as contracted,by a civil suit
ajay sethi
(Expert) 20 February 2013
the amounts have been written in his handwriting . name of party has been wirtten by the builder . only date is not mentioned . advisable to have builder fill in details
