Dear Mr. Vijay
In reply to your first query i.e. (1) what is the provision for presentment and validity of cheque.whether 6 months or 180 days from the date of the cheque. Any judgement from high court or supreme court.
I wud like to say that if you read section 138 of NI Act, which clearly says that the cheque has to be presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. Further you can go through the Judgment of Supreme Court passed in the matter of Shri Ishar Alloy Steels Ltd. vs. Jayaswals NECO Ltd. (2001)3 SCC 609
for further reference you can read section 138 of NI Act as hereunder:
138. Dishonour of cheque for insufficiency, etc., of funds in the accounts
Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for 2["a term which may extend to two year"], or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless-
(a) The cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier.
(b) The payee or the holder induce course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer, of the cheque, 3["within thirty days"] of the receipt of information by him from the bank regarding the return of the cheques as unpaid, and
(c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation: For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability].
Now come up to you next question i.e. in special civil suit can the defendant call for documents from plaintiff bank ?under which provision and any judgement of High court or supreme court.
In reply to this question I wud say that if you go through Order XI of the Code of Civil Procedure 1908, which deals with Discovery and Inspection, you will find the specific provision to call for documents form Defendant. You can get issued a notice through your Advocate under Order XI, Rule16 of the Code of Civil Procedure 1908.
The second option is that during trial of suit you can move an application before the Court under Order XI, Rule 12, and if the court is satisfied that the production of such document is necessary for fair disposal of the suit then the court may make an order to that effect. I have highlighted the relevant provision, which you were asking for.
You can read the Complete Order XI of Civil Procedure Code as hereunder:
ORDER XI. ORDER XI - DISCOVERY AND INSPECTION (THE FIRST SCHEDULE)
ORDER XI
DISCOVERY AND INSPECTION
1. Discovery by interrogatories
In any suit the plaintiff or defendant by leave of the Court may deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties and such interrogatories when delivered shall have a note at the foot thereof stating which of such interrogatories each of such persons is required to answer: Provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose : Provided also that interrogatories which do not relate to any matters in question in the suit shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness.
2. Particular interrogatories to be submitted
On an application for leave to deliver interrogatories, the particular interrogatories proposed to be delivered shall be submitted to the court 1[and that court shall decide within seven days from the day of filing of the said application]. In deciding upon such application, the Court shall take into account any offer, which may be made by the party sought to be interrogated to deliver particulars, or to make admissions, or to produce documents relating to the matters in question, or any of them, and leave shall be given as to such only of the interrogatories submitted as the Court shall consider necessary either for disposing fairly of the suit or for saving costs.
1. Ins. by Act No. 46 of 1999, section 21 (w.e.f. 1-7-2002).
3. Costs of interrogatories
In adjusting the costs of the suit inquiry shall at the instance of any party be made into the propriety of exhibiting such interrogatories, and if it is the opinion of the taxing officer or of the Court, either with or without an application for inquiry, that such interrogatories have been exhibited unreasonably, vexatiously, or at improper length, the cost occasioned by the said interrogatories and the answers thereto shall be paid in any event by the party in fault.
4. Form of interrogatories
Interrogatories shall be in Form No. 2 in Appendix C, with such variations as circumstances may require.
5. Corporations
Where any party to a suit is a corporation or a body of persons, whether incorporated or not, empowered by law to sue or be sued, whether in its own name or in the name of any officer or other person, any opposite party may apply for an order allowing him to deliver interrogatories to any member or officer of such corporation or body, and an order may be made accordingly.
6. Objections to interrogatories by answer
Any objection to answering any interrogatory on the ground that it is scandalous or irrelevant or not exhibited bona fide for the purpose of the suit, or that the matters inquired into are not sufficiently material at that stage, 1[or on the ground of privilege or any other ground], may be taken in the affidavit in answer.
1. Subs, by Act No. 104 of 1976, for certain words (w.e.f. 1-2-1977).
7. Setting aside and striking out interrogatories.
Any interrogatories may be set aside on the ground that they have been exhibited unreasonably or vexatiously, or struck out on the ground that they are prolix, oppressive, unnecessary or scandalous; and any application for this purpose may be made within seven days after service of the interrogatories.
8. Affidavit in answer, filing.
Interrogatories shall be answered by affidavit to be filed within ten days or within such other time as the Court may allow.
9. Form of affidavit in answer
An affidavit in answer to interrogatories shall be in Form No. 3 in Appendix C, with such variations as circumstances may require.
10. No exception to be taken
No exceptions shall be taken to any affidavit in answer, but the sufficiency or otherwise of any such affidavit objected to as insufficient shall be determined by the Court.
11. Order to answer or answer further
Where any person interrogated omits to answer, or answer insufficiently, the party interrogating may apply to the Court for an order requiring him to answer, or to answer further, as the case may be. And an order may be made requiring him to answer or answer further, either by affidavit or by viva voce examination, as the Court may direct.
12. Application for discovery of documents
Any party may, without filing any affidavit, apply to the Court for an order directing any other party to any suit to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such application the Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the suit, or make such order, either generally or limited to certain classes of documents, as may, in its discretion be thought fit:
Provided that discovery shall not be ordered when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.
13. Affidavit of documents
The affidavit to be made by a party against whom such order as is mentioned in the last preceding rule has been made, shall specify which (if any) of the documents therein mentioned he objects to produce, and it shall be in Form No. 5 in Appendix C, with such variations as circumstances may require.
14. Production of documents
It shall be lawful for the Court, at any time during the pendency of any suit, to order the production by any party thereto, upon oath of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just.
15. Inspection of documents referred to in pleadings or affidavits
Every party to a suit shall be entitled 1[at or before the settlement of issues] to give notice to any other party, in whose pleadings or affidavits reference is made to any document 2[or who has entered any document in any list annexed to his pleadings] or produce such document for the inspection of the party giving such notice, or of his pleader, and to permit him or them to take copies thereof; and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such suit unless he shall satisfy the Court that such document relates only to his own title, he being a defendant to the suit, or that he had some other cause or excuse with the Court shall deem sufficient for not complying with such notice, in which case the Court may allow the same to be put in evidence on such terms as to costs an otherwise as the Court shall think fit.
1. Subs, by Act No. 46 of 1999, section 21 for certain words (w.e.f. 1-7-2002).
2. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).
16. Notice to produce
Notice to any party to produce any documents referred to in his pleading or affidavits shall be in Form No. 7 in Appendix C, with such variations as circumstances may require.
17. Time for inspection when notice given
The party to whom such notice is given shall, within ten days from the receipt of such notice, deliver to the party giving the same a notice stating a time within three days from the delivery thereof at which the documents, or such of them as he does not object to produce, may be inspected at the office of his pleader, or in the case of bankers books or other books of account or books in constant use for the purposes of any trade or business, at their usual place of custody, and stating which (if any) of the documents he objects to produce, and on what ground. Such notice shall be in Form No. 8 in Appendix C, with such variations as circumstances may require.
18. Order for inspection
(1) Where the party served with notice under rule 15 omits to give such notice of a time for inspection or objects to give inspection, or offers inspection elsewhere than at the office of his pleader, the Court may, on the application of the party desiring it, make an order for inspection in such place and in such manner as it may think fit:
Provided that the order shall not be made when and so far as the Court shall be of opinion that, it is not necessary either for disposing fairly of the suit or for saving costs.
(2) Any application to inspect documents, except such as are referred to in the pleadings, particulars or affidavits of the party against whom the application is made or disclosed in his affidavit of documents, shall be founded upon an affidavit showing of what documents inspection is sought, that the party applying is entitled to inspect them, and that they are in the possession or power of the other party. The Court shall not make such order for inspection of such documents when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.
19. Verified copies
(1) Where inspection of any business books is applied for, the Court may, if it thinks fit, instead of ordering inspection of the original books, order a copy of any entries therein to be furnished and verified by the affidavit of some person who has examined the copy with the original entries, and such affidavit shall state whether or not there are in the original book any and what erasures, interlineations or alterations:
Provided that, notwithstanding that such copy has been supplied, the Court may order inspection of the book from which the copy was made.
(2) Where on an application for an order for inspection privilege is claimed for any document, it shall be lawful for the Court to inspect the document for the purpose of deciding as to the validity of the claim of privilege1[unless the document relates to matters of State.]
(3) The Court may, on the application of any party to a suit at any time, and whether an affidavit of documents shall or shall not have already been ordered or made, make an order requiring any other party to state by affidavit whether anyone or more specific documents, to be specified in the application, is or are, or has or have at an time been, in his possession or power, and, if not then in his possession when he parted with the same and what has become thereof. Such application shall be made on an affidavit stating that in the belief of the deponent the party against whom the application is made has, or has at some time and, in his possession or power the document or documents specified in the application, and that they relate to the matters in questions in the suit, or to some of them.
1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).
20. Premature discovery
Where the party from whom discovery of any kind or inspection is sought objects to the same, or any part thereof, the Court may if satisfied that the right to the discovery or inspection sought depends on the determination of any issue or question in dispute in the suit, or that for any other reason it is desirable that any issue or question in dispute in the suit should be determined before deciding upon the right to the discovery or inspection, order that such issue or question be determined first, and reserve the question as to the discovery or inspection.
21. Non-compliance with order for discovery
1[(1)] Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect and 2[an order may be made on such application accordingly, after notice to the parties and after giving them a reasonable opportunity of being heard.]
3[(2) Where an order is made under sub-rule (1) dismissing any suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action.]
1. Rule 21 renumbered as sub-rule (1) of that rule by Act No. 104 of 1976, (w.e.f. 1-2-1977).
2. Subs, by Act No. 104 of 1976 for "an order may be made accordingly" (w.e.f. 1-2-1977).
3. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).
22. Using answers to interrogatories at trial
Any party may, at the trial of a suit, use in evidence any one or more of the answers or any part of an answer of the opposite party to interrogatories without putting in the others or the whole of such answer :
Provided always that in such case the Court may look at the whole of the answers, and if it shall be of opinion that any others of them are so connected with those put in that the last-mentioned answers ought not to be used without them, it may direct them to be put in.
23. Order to apply to minors
This Order shall apply to minor plaintiffs and defendants, and to the next friends and guardians for the suit of the persons under disability.
Now come to your next question i.e. is it mandatory for the defendant to file W.s. within 90 days period from the case filed in court of law.
In reply to the question I wud say that Order VIII Rule 1 of the Code of Civil Procedure 1908, specifically deals with the filing of Written Statements. which be read as hereunder:
ORDER VIII
1[WRITTEN STATEMENT, SET-OF AND COUNTER-CLAIM]
1. Subs, by Act No. 104 of 1976, for the former heading (w.e.f. 1-2-1977).
1[1. Written statement.
The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence.
Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.]
I hope all your queries are pacified.
Thnaks
