Sahil (partner) 22 March 2009

for 138 can we request to trasnfer to other state

I own a small consultant business in Mumbai.

For business purpose we have done contract with a company that we will use their services for 3 years and issued quarterly post dated cheques. (total amount 1.80 Lacs + Service Tax)

The service quality was not as per our expectation and the other providers were available with good service in same cost, so After 3 and half months we informed the accounts manager that from next month we will not continue the services and asked them to send back our next cheques. Till this date only 15000/- (first cheque) was paid to company from our side. The next cheque they were supposed to deposit in next month for approx 20,500/-

There was no reply to the mail sent to The accounts manager, we have forwarded the same mail to him during that 15 days period (have copies in sent mail folder). We made STOP PAYMENT request for all the cheques issued to company as there was no responce.

my office is in mumbai, the company's registered office is in mumbai, the contract was done in mumbai, they deposited cheque in their mumbai bank.

Now they have filed a complaint against us under 138 at Delhi court (on the contract paper on back side it was mentioned that all disputes - Delhi court only) AND as per the notice the full amount is payable.

URGENT QESTION IS : Can I get the case transfered to mumbai court and if possible on what merits I shud demad it?

Second question : I have not purchased any goods / material ... it was a contract for services for three years ... still I am liable to pay the full amount if I am not interested in using their service?

The company in opposition is a well known big name ... and over the period of time I have been harrassed by their collections department executives .. they used to scare me that "settlement kar lo ... agar court case karenge to aapko Delhi me chakkar marne padenge ... double kharcha ho jayega .. n all

Pls help. I am attending the court in delhi for 1st date on march 25

Reply Follow

4 Replies

(Guest)

NANDKUMAR B.SAWANT.,M.COM.LL.B.(MUMBAI),ADVOCATE

MOBILE.09325226691,0271971251

e.mail.adv.nbsawant@yahoo.co.in

e.mail.nandkumarbs@sify.com

REGARDING THE CHEQUE CASE AT DELHI KINDLY NOTE AS UNDER

1.THE CASE IS FILED UNDER PROVISIONS OF NEGOTIABLE INSTRUMENTS ACT SECTION 138 AT DELHI COURTS AND FIRST DATE IS 25 TH MARCH 09

2.YOU MAY SEND A VAKALATNAMA DULY SIGNED BY YOU AND APPEAR WITH SURETY DOCUMENTS AND GET BAIL FROM THE COURT FIRST.

3.IN CASE SURETY PAPERS ARE NOT READY YOU MAY APPLY FOR GRANTING NEXT DATE FOR SUBMITING SURETY DOCUMENTS AND PRAY FOR RELEASE ON PERSONAL BOND OR CASH SECURITY.

4.IN CASE ANY FINANCIAL AND HEALTH PROBLEM IS THERE ENCLOSE A MEDICAL CERTIFICATE AND APPLY FOR NEXT DATE TO SUBMIT SURETY AND ALSO SUBMIT VAKALATNAMA.

5.KINDLY NOTE THAT YOU MAY APPLY TO HIGH COURT DELHI UNDER SEC.482 OF CRIMINAL PROCEDURE CODE AND CHALLENGE THE PROCESS ISSUED UNDER SEC.138 AT DELHI COURTS.

6.KINDLY NOTE THAT NEGOTIABLE INSTRUMENTS ACT SECTION 138 CASES ARE CRIMINAL CASES AND AS PER CRIMINAL LAW PLACE OF OFFENCE IS IMPORTANT FOR DECIDING THE JURISDICTION OF THE COURT. YOU MAY SUCCEED AS YOUR CASE COMES UNDER JURISDICTION OF BOMBAY COURTS.

9.KINDLY NOTE FOR CIVIL SUIT DELHI COURTS CAN HEAR THE SUIT AS PER THE CLAUSE IN CONTRACT.

10KINDLY NOTE FOR TRANSFERING YOUR CASE FROM DELHI TO BOMBAY COURTS , YOU HAVE TO FILE TRANSFER PETITION TO SUPREME COURT OF INDIA AS DIFFERENT STATES ARE INVOLVED. IT WILL BE COSTLY FOR YOU.

11.INSTEAD OF THAT I SUGGEST YOU PLEASE FILE APPLICATION AT HIGH COURT DELHI UNDER CRPC.SEC.482 FOR QUASHING THE SAID COMPLAINT AT DELHI COURTS UNDER SECTION 138 OF N.I.ACT.AND RAISE OBJECTION FOR JURISDICTION OF THE COURT.AND OTHER GROUNDS.

KINDLY SEND DETAILS AND IN CASE YOU NEED ANY URGENT HELP KINDLY CONTACT URGENTLY SO THAT I CAN HELP YOU , IN CASE YOU DO NOT WANT TO ATTEND DELHI COURTS ON 25 MARCH 2009.

THANKING YOU

WITH BEST REGARDS

YOURS SINCERELY

NANDKUMAR B. SAWANT,M.COM.LL.B.(MUMBAI), ADVOCATE

Rajneesh Malhotra (Advocate) 23 March 2009

There is no provision for getting the case transfered to Mumbai jurisdiction. Once you have commited a violation under Section 138 of the Negotiable Instruments Act, your are an ACCUSED and you will have to attend proceedings where the case has been filed.

The best remedy is ofcourse to file for quashing of the summons before the Hon'ble High Court at Delhi.

The second best remedy is first to take bail from the Learned Court where the case is pending and then move for quashing.

N.K.Assumi (Advocate) 23 March 2009

You have agreed with Delhi Jurisdiction as per the contract, and now you want to wriggle out of that, and if you attempt to transfer the case it will coast you heavily. The offence is bailable and compoundable and the trial is summary. So go for delhi jurisdiction and find out the best means to settle your case before the delhi jurisdiction in speedy manner.

B.N.Rajamohamed (advocate / commissioner of oaths) 23 March 2009

As all your transactions were held at mumbai you can file a transfer petition before the high court to get yur case transfered to the mumbai court.

When a case is subjudice the complainant cannot approach you in the way of annoyance untill disposal of the case so you present a petition before the judicial magistrate informing him about the annoyance caused by the complainant.

Once you are not satisfied with the services at any time you can cancel the contract and you are not liable to pay the entire amount. As you say the you issued a e-mail to the manager of the company for termination of the contract, you produce a copy of it at the time of defence stage of the trial of your case.That will help to establish that the complainant harrased you by msusing the cheques you have issued.