Section 138 of ni act
Lakshmikant Hebare
(Querist) 21 March 2015
This query is : Resolved
I had booked one flat. But later due to defects in property title, I cancel the deal and requested builder for refund of advance money. The said flat booking was cancel by in June 2014. But till date builder hasn't gave me back single penny. He gave me cheque of Rs. 25000/- (as part payment to rupees 101000/- due to me). But the said has been dishonoured on account of insufficient funds. I gave him notice u/s 138, but notice came back to me as unclaimed.
I want to know what is the next procedure ?
And I also want to claim in total 350000/- rupees on account mental harrassment and wastage of my time. What should I do to recover money?
M/s. Y-not legal services
(Expert) 21 March 2015
Under negotiable instrument you can not claim the cheque amount or compensation. It is a penal provision. So court can punish the drawer..
Same time court may impose fine amount and the same may be fix as compensation to you.
Apart from this you are liberty to recovery of money by filing a mobey suit..
Not claimed is equal to duly served. So you can file the case before concern court.
Devajyoti Barman
(Expert) 21 March 2015
You an file 138 case wherein you have to claim for amount mentioned in the cheque only.
However the court can award penalty upto 3 times of the said amount.
For compensation and damages you have to file separate civil suit.
M/s. Y-not legal services
(Expert) 21 March 2015
Devajyoti bhai.. Three times penalty is possible.? Few supreme court judgements ends with doubke time penalty..
ajay sethi
(Expert) 21 March 2015
file complaint before consumer forum against builder and seek refund with interest . also seek compensation for mental torture you have undergob
ajay sethi
(Expert) 21 March 2015
you can file complaint under section 138 Nion account of dishonour of cheque of rs 25000 but it would take years to be disposed of . whereas case before consumer forum take 2 years to be disposed of
Dr J C Vashista
(Expert) 23 March 2015
I agree with experts advise, however, you can also file a suit for recovery of the amount paid, issue legal notice and proceed.
Complaint under the provisions of Section 138 of the NI ACT, 1881 provides punishment to double the cheque amount, 2 years imprisonment and a fine (upto Rs. 5,000/-). You shall have to confine your complaint for the cheque amount only.
In consumer case and suit for recovery you can seek and get entire amount paid with interest thereon and part of litigation expenses.
For further clarifications/ advise/ proceedings go to my profile and "Click to Talk" button.
T. Kalaiselvan, Advocate
(Expert) 24 March 2015
I agree with the views and suggestions made by expert Mr. Thangapandian. For recovery of money, a civil court suit will be the proper route.
