INJUNCTION VACATE --CHEQUE BOUNCE
TANMOY
(Querist) 24 September 2009
This query is : Resolved
Hi, Here is the problem for our experts-
1. A lady had taken a home as tenant and living there for last two years and handed over her ornaments to the landlord who had issued a cheque of 12 lac rs for the purpose of purchasing those ornaments. The cheque was bounced and the lady issued a notice of demand under 138 N.I. act.The landlord told the lady to vacate the house. The lady refused and went ahead with securing an interim INJUNCTION from the court of Civil Judge and a complaint before Judicial Magistrate First Class for cheque bounce.
2. The husband of that lady had issued a cheque of Rs. 1 lac to the landlord for paying rent arrears but as the landlord took a loan of Rs. Six Lac from the husband of that lady, the landlord issued a cheque of Rs. five lac to the husband of that lady AFTER DEDUCTING THE HOUSE RENT. The cheque which was issued by the husband, 1 lac rs, was bounced as well as the cheque which was issued by the landlord, 5 lac rs, was also bounced. And ofcourse, a complaint case under 138 N.I act is pending against the landlord.
NO AGREEMENT IS IN EXISTENCE IN BETWEEN THE LANDLORD AND TENANT REGARDING RENT AGREEMENT, PURCHASE OF ORNAMENTS, PAYING OF ARREAR AND THE HANDLOAN.
3. Now, the landlord is claiming before the Civil Judge that the lady is not paying rent for last two years and the cheque of 1 lac rs towards house rent was bounced and therefore, the injunction should be vacated.
IN OUR POSSESSION-
1. A CHEQUE OF 12 LAC AGAINST ORNAMENT-PURCHASHE, WHICH WAS ISSUED BY THE LANDLORD AND GOT BOUNCED.
2. A CHEQUE OF 5 LAC TOWARDS HANDLOAN.
PLEASE MIND NO AGREEMENT IS THERE EXCEPT CHEQUES.
THEY HAVE A CHEQUE OF 1 LAC RS WHICH WAS ISSUED BY THE HUSBAND OF THAT LADY AND WHICH GOT BOUNCED.
What plea could be taken in Court so that the Interim Injunction will not be vacated and perpetual injunction could be obtained?
The family does not want to stay in that home but not want to vacate it until and unless the money will be recovered.riven
adv. rajeev ( rajoo )
(Expert) 24 September 2009
Dear Tanmoy,
It is very wonder how come the court granted the TI agaist the tenent. What is the nature of the suit u hv filed.
Tenent cannot seek TI order aginst the land lord. Only Tenent can file a suit seeking Interrium injunction order that " Defendant may kindly be restrained by an ad interrium injunction order as not to vacate him without following the due course of law".
To prove the case burden lies on you, it needs independent wittnesses to convince the court that you are the tendent of the land lord.
Could u tell me the defence taken by the land lord on the main suit and on the intrrium application? It helps me to
answer.
It is also necessary to know whether land lord has filed any suit against the tenent for possession.
riven
Raj Kumar Makkad
(Expert) 24 September 2009
Temporary Injunction has been granted in your favour, it prima-facie establishes your tenancy but not rent amount. Dispute can be raised over this point. But big matter is cheque of Rs. 5 lakh without any agreement. You may prepare some witnesses, who may deposr on oath before criminal court that such and such agreement for the sale of the ornaments had taken place and cheque was issued by landlord in their presence which got bounced and later on landlord prayed that he shall pay the amount in cash and we prayed to return our cheque of Rs. 1 lakh and pay cash after deducting Rs. 1 lakh. You hav gud case. Persue it vigorously on these lines.riven
