Abhi (Teacher) 06 November 2016

Cheque bounce recall - conditions

Respected Legal Experts

We badly need your guidance and inputs on the following case.

Thanks
Abhi

Background of the case:

1. Cheque bounced [ Oct 2015 ]which is issued as part of an agreement of Sale. The sale is not complete as cheque issued is dishonored.

AS per the T &C in Agreement of Sale, All the earlier paid amount has to be forfeited and the agreement of sale becomes void and the property has to be handed over to us. However, since October 2015 to till date , the property is still under control of accused.

2. As per Directions from our Lawyer, he filed 138 Cheque bounce as initial legal proceedings.

3. Accused didn't appear to the court for any of the hearings and finally, our lawyer went to the accused and made him sign a summon that he would appear in court on Nov 2nd, [ signed a bond for 5k ].

4. Accused on Nov 2nd was not present in the court when Magistrate called both parties for hearing. Since the accused didn't turn up a non-bailable warrant [ NBW ] has been issued to bring the accused to court for next hearing which is scheduled for Dec. We left the court hall.

5. The accused 's Lawyers came to court after we left for the day and filed Recall of NBW.

To discuss our next course of action - when we approached our lawyer next day, he said that the Non-Bailable warrant against the accused has been recalled and it has been done without his notice and he didn't contact us when it happened.

Here are our questions:

a) Can a recall of NBW happen without the notice of our appointed Attorney ?

b) If the recall has to happen with our lawyer's knowledge is it not mandatory on our attorney's part to consult us before he can agree for a recall of NBW ?

c) Since the accused has missed all the earlier hearings and ignored all our prior notice, can we file a Dismissal of "Recall of NBW" OR is there any procedure to re-instate NBW on the accused ?

c) Also, since we have only filed 138 against accused, can we now file a cheating case as they are enjoying our property without full and final settlement of Sale AND ask them to hand over the property.

d) The accused is still using the statutory taxes issued under our name. How can we make him stop that, as we will be held responsible for any discrepancies that might arise out of they using our licenses?

e) One final question - The Building has no permission of Fire safety, police clearance certificate etc., is there a chance for us to get the concerned authorities and get this information [ example:Right to Information act] to substantiate our stand ?

The accused's father is a Lawyer and they are exploiting all the loopholes in the legal system and delaying the justice to my mother and they are enjoying our property for more than a year and we are feeling helpless.

We are worried that my mother's innocence has been exploited by lawyers and they are trying to save the accused by hook or crook, and deny justice to my mother.

Note: Please forgive my ignorance if I have asked something which might seem foolish.

Reply Follow

12 Replies

adv.bharat @ PUNE (Lawyer) 06 November 2016

A) No

B) YES

C) YES

D) Give public notice with that effect.

E) U can get the required certification to avoid the consequence so law.

Abhi Will u appreciate my answer by giving THANKS on my LCI profile.?

2 Like

G.L.N. Prasad (Retired employee.) 06 November 2016

Focus on final remedy simultaneously instead of wasting time on trivial matters .

1 Like

Abhi (Teacher) 06 November 2016

@Prasad: Our attorney and party lawyers are dragging the issue and denying us justice. Could you please elaborate what would be your ideal approach for a final remedy in our case. Any further details and guidance would be more appreciated.

Abhi (Teacher) 06 November 2016

@Bharat thanks for your inputs. I will give Thanks on your profile ( currently from mobile I don't see such option)

P. Venu (Advocate) 06 November 2016

"All the earlier paid amount has to be forfeited and the agreement of sale becomes void and the property has to be handed over to us. However, since October 2015 to till date , the property is still under control of accused."

How is it that the accused is in possession?

Abhi (Teacher) 06 November 2016

@ Venu: Thanks for reply. The accused is the landlord of the commercial complex and we have leased the space for our restaurant in that building.

Agreement of sale is entered where Buyer [ accused] has to take possession after the encashment of second cheque and full and final settlement happens only after the encashment of thrid cheque. But Unfortunately after the possession the accused failed to make the final cheque payment.

Abhi (Teacher) 06 November 2016

@ Venu: Thanks for reply. The accused is the landlord of the commercial complex and we have leased the space for our restaurant in that building. We have entered agreement of sale and he took possession of our restaurant

Samarpan (M)99958670740 (Free legal advice and legal aid cell) 07 November 2016

No need to inform your counsel about cancellation of NBW. It is a coercive measure and not punitive one. It ensures accused's presence on next date of hearing. so leave that matter like that.

1. If agreement is still valid, he has to make payment of the cheque or face imprisonment. Your responsibility is only to prove the sale agreement.

2. If you are not satisfied with this action, go for specific performance suit and ask him to make payment dues or return the property back. If he is ready to cancel sale agreement, then you are entitled to meanse profits also from the date on which property was handed over to him till date of receiving the property.

Abhi (Teacher) 07 November 2016

@ Samarpan

Thanks for your inputs. Agreement of Sale [ AoS] is not valid, but the Lease agreement which was entered between us and Accused is in effect, as a result of Non-compliance of accused towards the "Agreement of Sale". As per AoS, accused have to handover the property in the event of cheque bounce and the earlier Lease Agreement [ where we have paid 9Lakhs as caution deposit comes into effect and which is valid till 2021] , but stil haven't and has been running the business.

Our concern is since they aren't handing us the property , we want to claim rent of 80K per month, which we have been paying to accused before we entered AoS. how can we do this. Please guide us.

P. Venu (Advocate) 07 November 2016

The information furnished, I am afraid, incomplete and incoherent.

Abhi (Teacher) 07 November 2016

@Venu : Please let me know what information is missing, I will try my best to furnish the missing pieces of information.

Samarpan (M)99958670740 (Free legal advice and legal aid cell) 08 November 2016

If your interest is to get back the possession of the property and also rent from the date of dispossession from you, the proper course of action is to file specific performance suit seeking the return of the possession of the property and means profit (rentals from the date of dispossession). If your interest is only to get the amount of the cheque then pursue the case under S. 138 NI Act, which you are doing right now.