Section ni 138
CreateGoodwill
(Querist) 22 March 2012
This query is : Resolved
I have sold mat to dealer in Hyderabad for 10Lacs he had issued a 2 chq for 5 lacs of HYD coop bank
after wards both the chq got return.
we are following for payment.
now he has sent the mail i have close the A/c of HYD co op bank and will issue new bank chq. now we are regualrly sending reminders and followup to his office nor he is giving the new chq.
what i can do at this stage can i deposit the chq. and file NI 138 or not.
M.Sheik Mohammed Ali
(Expert) 22 March 2012
if you get return with drawer bank with in 15days immediately send to notice and file a case.
H. S. Thukral
(Expert) 22 March 2012
Since you did not file a complaint within limitation, you can not file a complaint now. since the drawer has given you information about closure of account and in case you bank the cheques again, you would not succeed under 138. Best course shall be to file a recovery suit under order XXXVII of CPC
CreateGoodwill
(Querist) 22 March 2012
Dear Mr.Harbhajanji,
he is nor responding the mail we are sending to change the chq nor he is also informing us which is the new bank he has open the A/c.
for just any one send a mail to stop banking then what is the value of the instrument.
ajay sethi
(Expert) 22 March 2012
contact a local lawyer . when cheqwas bounced did you issue notice ?
if you had issued noitce mr harbhajan is right .
better file a summray suit .
CreateGoodwill
(Querist) 22 March 2012
i have not sent any notice to the Dlr,
can i redeposit these chqs. and file NI 138 case against this Dlr.
Anirudh
(Expert) 22 March 2012
Dear Mr. Amit,
You said in your first post that
"now he has sent the mail i have close the A/c of HYD co op bank and will issue new bank chq."
Now we note that he is not responding to your further mails, he is not confirming whether or not he has opened a new bank account; and he is issuing a new cheque.
It is only after understanding the fact situation, Mr. Harbhajan Thukral and Mr. Ajay Sethi has advised you as under:
1. Meet with a local lawyer
2. Issue a legal notice stating that you will be filing an Order 37 Summary suit in case he does not make good the payment in lieu of the cheque issued by him earlier;
3. If he does not make payment within the notice period, then ask your lawyer to file a summary suit under Order 37.
YOU HAVE TO NECESSARILY CONTACT A LOCAL LAWYER AND DISCUSS THINGS BY SHOWING ALL THE DOCUMENTS, CHEQUES, PURCHASE ORDER, SUPPLY DOCUMENTS ETC., AND TAKE ACTION IMMEDIATELY.
EXCEPT SUGGESTION, YOU CANNOT HOPE TO SOLVE YOUR PROBLEM BY DISCUSSING HERE. ACTUAL ACTION HAS TO BE TAKEN BY A LOCAL LAWYER. ANY DELAY IN TAKING ACTION WILL BE DETRIMENTAL TO YOUR INTEREST.
Basavaraj
(Expert) 22 March 2012
Dear Experts well advise,no further advise is requried to provide.
I request Dear Singh, Sethi and Anirudh to explain how summary suit can file under order 37 of CPC without any contract between the parties..pls correct me if am wrong, as per my acknowldge without agreement/contract no person can file summary suit under order 37, in such case ordinary suit shall be filed for recovery of moeny under section 26 read with order VII rule 1 of CPC.
ajay sethi
(Expert) 22 March 2012
basavraaj
please go through provisions of order XXXVII of CPC . summary suit can be filed in respect of written contracts , bills of exchange , hundis .
Subject to the provisions of sub-rule (1), the order applies to the following classes of suits namely: -
a) suits upon bills of exchange, hundies and promissory notes: b) suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising,- (i) on a written contract; or
(ii) on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or (iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only
in the present case amount is sought to be recovered in respect of goods sold and delivered wherein cheques have been issued . summray suit would lie
Basavaraj
(Expert) 22 March 2012
what is your judification? finally para (a) (i) refers on a written contract ....pls request you to explain
Shonee Kapoor
(Expert) 22 March 2012
The suit is maintainable in part (ii)
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
ajay sethi
(Expert) 22 March 2012
basvaraj
the amount sought to be recovered is fixed sum of money A cheque is a bill of exchange within the meaning of Section 6 of the Act
Sankaranarayanan
(Expert) 22 March 2012
Yes I too gone through all experts opinion. First he failed to issue notice in the time limit. So mr harbajan advised to suit under cpc 37 bcz the supply of materials against the contract hope. If there is no such contract then it goes in another. 26 cpc
H. S. Thukral
(Expert) 23 March 2012
Bills/invoices containing terms of contract constitute a contract and summary suit can be filed under order 37
Shonee Kapoor
(Expert) 23 March 2012
When a bill is issued, a contract is formed.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
SAINATH DEVALLA
(Expert) 23 March 2012
Dear Amit,
Replies given by all the above experts is enough for you to proceed further.
Why did you accept the contents of the mail,which stated that they have closed their previous account.You have unneccesarily delayed the entire process.Your client is just exploring an escape route.
