Section 138 to threat us

Don't Worry,  if  "Memorandum of understanding" is in written. What clauses u have drafted on it ?

dear, first thing is that u reply to the notice.second thing is u defend the case when u receive the summons from court.the most important thing is that this matter does not fit in 138.the reason?? very simple .there is no legal enforceable liability.now this it is your duty to proove that you have no liability. any further clarifications pls get connect : with best regards shamina sayed advocate high court adv.shamina@yahoo.com

u have got memorandum of agreement. You reply the notice and also issue notice to return the cheque immediately because there is a breach of agreement by the owner and also instruct him that if he failed to return the cheque within __days criminal action agaisnt will be initiatesd.

 post dated chq, presentation intimation must be their.NO WORRY, FOLLOW ABOVE-

You are fortunate to understand the gullble manouvres and issue stop payment .Be not afraid.face the same and issue reply to the notice pointing out the motive to c heat you.

Dear all Thank you for your reply.

 

As I have mentioned before as a mater of trust I did not mentioned anything like what if the papers are not proper, But verbally we cleared it that all papers has to be at place since I am takig bank loan...

For your reference I am please refer below the text in the "memorandum of understanding"

As:-

MEMORANDUM OF AGREEMENT

The agreement made on this …………………….. day of 2009.

 

B E T W E E N

 

1.       SRI. XXXXX[Seller]

Son of XXXXX  by fate Hindu occupation retired from service residing at  XXXXXXXXXXXXXXXXX, hereinafter referred to as the OWNER (which expression shall unless exclude by or repugnant to the context deemed to mean and include their heirs, executors, administrators and assigns) of the first part/party.

 

A N D

 

2.       (a)  SRI. SAMRAT ROY son of XXXXXXXXXXX [Purchaser]

(b)  SRI. XXXXXXXXXXXXXX son of Late xxxxxx by faith Hindu occupation service residing at XXXXXXXXXXXXXXXXXXXXX, Mumbai, hereinafter referred to as the  PURCHASER (which expression shall unless exclude by or repugnant to the context deemed to mean and include their heirs, executors, administrators and assigns) of the second part/party

 

AND WHEREAS it has been agreed by and between the parties that Plot No XXXXXXXXXXXXXXXXXXXXXXXr, Vashi Gaon, Navi Mumbai measuring 610 Sq.Ft (BUILT UP AREA)

 

AND WHEREAS the negotiated price agreed between the parties as follows:

1.       Total SUPER BUILT UP AREA        :               775 SQ.FT

2.       RATE PER SQ.FT                                                :               Rs 3350.00/-

3.       TOTAL VALUE OF THE FLAT (EX- :               RS 25,96,250/-

-CLUDING STAMP DUTY AND

-REGISTRATION)

 

MODE OF PAYMENT

1.       Booking/Token Money Rs. 50,000 (Fifty Thousand Only) vide cross cheque no …………………………………….... dated ……………………

 

2.       Remaining balance Rs. 25, 46,250(Twenty Five Lacs Forty Six Thousand Two Hundred And Two Hundred and Fifty) at the time of registration within 40 days from the date of token money received.

 

3.       In any case registration is not done within the specified period mentioned above token money of Rs. 50,000 will be forfeited.

 

Now this deed of agreement witnessed and it hereby agreed and declared by and between the parties and signed accordingly.

 

Witness                                                                                                                      

 

 

1.

 

                                                                                                                                        ___________________            

2.                                                                                                                                    Signature of the owner

 

 

 

 

 

                                                                                                                                        ______________________    

                                                                                                                                        Signature of the purchaser

 

Please give your valuable input.... what step should I take next.

Originally posted by :Rajiv Raj Chauhan
"	Don't Worry,  if  "Memorandum of understanding" is in written. What clauses u have drafted on it ?	"

 

Ya, that's Good. Now reply the notice and also issue notice to  return the cheque within 21 days as it is not valid contract/agreement, failing to which criminal liability will be Initiated  against the owner.

Now appoint a local lawyer, he will manage your problem.

regards,

rajiv chauhan

 

It is a sine qua non for the complainant in a cheque dishonour complaint (138 N.I Act) to prove that there existed any debt or legally enforceable liability for payment of which cheque was issued by drawer (you). In your case, you must serve a notice of termination of agreement mentioning specifically that the noticee has acted fraudulently by concealing the true facts. Although the factum of availing bank loan by you and providing NOC etc. by the vendor is not mentioned in the MOU still you may take the plea in your notice. When you are not claiming anything under the agreement, there cannot be any existing debt or liability for discharge of which the cheque may have been issued. 

Hi Shabana,

 

Thank you for your valuable reply, for further clerafication I am sending you the exact text that was there in the "Memorandum of agreement" it was on a Rs.100 NON JUDICIAL Stamp Paper.

As Follows:

MEMORANDUM OF AGREEMENT

The agreement made on this …………………….. day of 2009.

 

B E T W E E N

 

1.       SRI. XXXXX[Seller]

Son of XXXXX  by fate Hindu occupation retired from service residing at  XXXXXXXXXXXXXXXXX, hereinafter referred to as the OWNER (which expression shall unless exclude by or repugnant to the context deemed to mean and include their heirs, executors, administrators and assigns) of the first part/party.

 

A N D

 

2.       (a)  SRI. SAMRAT ROY son of XXXXXXXXXXX [Purchaser]

(b)  SRI. XXXXXXXXXXXXXX son of Late xxxxxx by faith Hindu occupation service residing at XXXXXXXXXXXXXXXXXXXXX, Mumbai, hereinafter referred to as the  PURCHASER (which expression shall unless exclude by or repugnant to the context deemed to mean and include their heirs, executors, administrators and assigns) of the second part/party

 

AND WHEREAS it has been agreed by and between the parties that Plot No XXXXXXXXXXXXXXXXXXXXXXXr, Vashi Gaon, Navi Mumbai measuring 610 Sq.Ft (BUILT UP AREA)

 

AND WHEREAS the negotiated price agreed between the parties as follows:

1.       Total SUPER BUILT UP AREA        :               775 SQ.FT

2.       RATE PER SQ.FT                                                :               Rs 3350.00/-

3.       TOTAL VALUE OF THE FLAT (EX- :               RS 25,96,250/-

-CLUDING STAMP DUTY AND

-REGISTRATION)

 

MODE OF PAYMENT

1.       Booking/Token Money Rs. 50,000 (Fifty Thousand Only) vide cross cheque no …………………………………….... dated ……………………

 

2.       Remaining balance Rs. 25, 46,250(Twenty Five Lacs Forty Six Thousand Two Hundred And Two Hundred and Fifty) at the time of registration within 40 days from the date of token money received.

 

3.       In any case registration is not done within the specified period mentioned above token money of Rs. 50,000 will be forfeited.

 

Now this deed of agreement witnessed and it hereby agreed and declared by and between the parties and signed accordingly.

 

Witness                                                                                                                      

 

 

1.

 

                                                                                                                                       

2.                                                                                                                    Signature of the owner

                                                                                                                             

                                                                                                                Signature of the purchaser

 Please suggest me what should i reply to the Notice I have received from his lawyer, which states that since I have paid him a cheque which got dishonored so I have cheated him, Now he wants me to pay the full amount of the cheque(Rs 50,000) along with the lawyers fees within 15 days of receipt of the notice.

 

Thanking you in anticipation.

 

Regards,
Samrat Roy 

Hi Shamina,

 

Sorry to adress you as Shabana in my previous reply..

 Dear friends,

The magistrate, as Justice Bilar Kazi said, does not even read the case. For him, the Biblical words are "holder of the cheque in due course". Legally enforceable debt - who cares. Mr. Samrat can't prevent the builder from filing 138 case. His trauma starts thereafter. Go on plugging all the loopholes till the cows come home.