N.I.Act-138
Dr.Gaurang N. Gandhi
(Querist) 17 November 2009
This query is : Resolved
If there is a contract performed by two parties regarding sell of goods at certained quality and as per the agreed prise. the buye handedover a cheque for the same at full payment in advance.
Now the saller delivered the goods in infirior quality.
In there agreemnt the saler is agreed to deposit the cheque only after delivery of the goods.
on delivery the buyer called the bank for stop-payment regarding the cheque handed over to the saler, by giving the ssaid cheque number.
at the same time he also inform the saler not to deposit the said cheque in the bank on the reason that the goods is not as per the sample quality.
dispite of that the saller deposit the same cheque in bank for payment of that.
the cheque is returned on the endorsement of stopped payment..
ON this the saller filed a suit in court.
Q1. can he has right?
2. what are the remedies for the buyer?
3. any extra suggestion both the side for saller and the buyer side.....
Arul Kumar
(Expert) 19 November 2009
When the agreement was conditional, then such condition must be fulfilled to complete the contract. From the above fact, the seller has not complied the condition, which was essential for the contract. Thus the buyer, who has given a cheque was also subjected to the fulfillment of condition of delivering quality goods as per the agreement by the seller. The seller has no right to file a suit under Section 138 of N.I. 1881 as there is no existence of liablity from the Buyer. The buyer in return can file a suit against the seller for the specific performance.
