Negotiable instrument Act S.138 -Two notices one debt First payment made in full.
Jitendra Raval
(Querist) 24 March 2009
This query is : Resolved
I would like to share with my seniors follwing
The complainant claimed that accused issued two cheques Rs. 2 lac and Rs. 42000 on 01.08.2008 for full alleged debt.it was deposited and returned undpaid. Immediately after returned of cheques the complainant sent the legal notice to the accused without mentioning the cheque numbers in the notice. The complainat thought, the notice may be void as there was no mention of cheque numbers and did not take any action other then sending notice.
The complainant had thired cheque in his possession. Again he filled the amount Rs. 242000 dated 21.09.08 and present the cheque for payment which was returned unpaid. The notice served to the accused but not received by the accused and confirmed by the postal authorities about the wrong delivery.
The suit was filed on 01.11.08
Inlight of above facts..Please give your expert opinion about following.
1 Whether the case filed on the basis of second notice will not be time barred? As the debit is same and payment was stated to be made in full.
02. Whether first notice without cheque numbers was valid?
Address written on the notices was correct but it was written in Gujarati language and hence the error commited by the concered postman and wrongly intimated to C-103 instead of C-703
Please convery your views preferabally site the related caselaws if possible.
With regards
KamalNayanSaxena
(Expert) 25 March 2009
You have not furnished complete particular of complaint for proper reply.
n.k.sarin
(Expert) 25 March 2009
Dear Raval, no doubt correct answer of your query wants more detail.
MANISH
(Expert) 27 March 2009
Dear Mr. Raval,
Your query is somewhat confusing, and incomplete, still I try to sort it out :
1. The limitation of fifteen days given in notice period starts when the accused gets notice, if notice received, but it starts on the issuance date, if notice is not received, and the complaint has to be filed after one month of the fifteen days' notice period. Otherwise time barred.
In your case, the postal authorities themselves admit for wrong delivery, it means at wrong address, it means that the notice was not given to the accused, not even deemed service of notice, so the complaint may not sustain, and the case may be dismissed even at the threshold.
2. The first notice without cheque nos. is invalid, and the complaint may be dismissed on this technical ground alone.
Jitendra Raval
(Querist) 28 March 2009
Address was correct on the envelop but was written in Gujarati language
adv. rajeev ( rajoo )
(Expert) 28 March 2009
when there is no cheque nos., in the notice, such notice it self is invalid and on the basis of this u can file an appliction for discharge of an accused.
I think second notice is issued on the basis of the new cause of action.
Service of notice is essential.
