Section 138
Kvijay12345
(Querist) 30 April 2014
This query is : Resolved
my friend had taken the unsecured loan from bajaj finance . He was repaying the loan through ECS.Bajaj finance had obtained his blank signed cheques as security at the time of disbursement of loan.Due to some dispute with bajaj finance my friend stopped to repay the monthly EMIs of the loan. After two years Bajaj finance,deposited one of those security cheques without informing the borrower and the cheque got dishonoured. Now bajaj finance have filed a complain under section 138 of NI Act in the Court.Further bajaj finance have given the authority to fight the case to some third person without informing the borrower. Is this tenable in the eyes of law. what are the legal remedies available for the borrower?
ROHIT SHARMA
(Expert) 30 April 2014
1. Yes, bajaj finance have given the authority to fight the case to some third person without informing the borrower. This is tenable in the eyes of law since commercial laws allows secured creditors of the debts to recover the bad loan.
Advocate Ravinder
(Expert) 30 April 2014
Cheques given for the purpose of surety does not attract sec. 138 of NI Act. The bank has only one option that is recovery of money by filing civil case.
Dr J C Vashista
(Expert) 01 May 2014
Do you have evidence to prove that the cheque issued were for security purpose?
It is No.
It attracts the provisions of Section 138 of NI Act.
ajay sethi
(Expert) 01 May 2014
you have fight 138 Ni case on merits . once you have give blank signed cheques you have authorised finance company to fill in details .
you have not mentioned what defence you have raised in reply to legal notice . have you taken the plea that dates ,amounts have been filled in by finance company without any authorisation
Rajendra K Goyal
(Expert) 01 May 2014
You have to defend case u/s 138 against you on merits. Since more cheques are also in possession of the company, they can present these further.
V R SHROFF
(Expert) 01 May 2014
You have to defend case u/s 138 against you on merits.
POA can proceed 138ni.
There are Lakhs of cases filed by financial co, for n.i. ; for such security chq. nothing new, and is allowed.
Otherwise why Co. keep those cheque???
DEFENSE ADVOCATE.-firmaction@g
(Expert) 01 May 2014
If amount is big than you can contest and win since defense costs in such cases is not cheap.
Regarding SECUIRTY cheque or even BLANK CHEQUE in every court it is standard defense on misconceived understanding of SC CITATIONS and routinely dismissed .
More ever in the false hope of security cheque or blank cheque concept the accused admits the cheque and signature and so other defenses are lost and convicted .
malipeddi jaggarao
(Expert) 01 May 2014
If there was any dispute with the finance company, it had to be resolved instead of stopping payment of EMIs. You have to fight 138 case on merits.
Advocate Ravinder
(Expert) 01 May 2014
There are number of citations of SC and High courts saying that the cheques given for security/surity will not attract 138 NI Act. Even the post dated cheque or blank cheque will not attract 138. To attract 138 it should be a legally enforceable debt and nothing else. The constitution and intention of NI Act also enumerates the same.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 01 May 2014
Now you say no of citations form HC and SC. Once SC is there so HC is out of question.
Now read them and mention any SC citation for above situation of security cheque.
