LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

bhairab (CEO)     11 April 2014

Undue delay in service of legal notice and limitation act

Short history:

 

1.       Our soleproprietorshuip firm purchased materials on 4.1.93 from a State Government undertaking

2.       Payment made by post dated cheque.

3.       Our firm closed in 1996.

4.       On or around 304.12 (app. 20 years after date of transaction) received a legal notice from the lawyets of Gpvt undertaking that a civil suit has been filed in Calcutta High Court (Original side) for recovery of sum of Rs. 10 lac and as follow:

Orice of goods sold on 4.1.1993:                Rs. 3 lacs

Interest upto 31.3.1996:                                Rs. 2.75 lacs

Damages claimed:                                           Rs. 5.00 lacs

Total :                                                                    Rs. 10.75 lacs

5.       No papers available with us as firm closed app. 18 years back.

6.       Came to know about existence of suit (filed on 15.7.1996) after 16 years of filing of suit .

7.       From the documents exhibited by Plffs. And oral evidence, it is proved that all payments used to be by post dated cheques before issue of delivery orders.\

8.       No whisper of payment by post dated cheques in the plaint.

9.       Court says that as because public money is involved, defendants must produce documents to prove that payment is made by us. – how possible to produce documents of transactions which tool place before 20 years.

Quries

1.       Whether the suit is maintenable in High Court (Jurisdiction: above 10 lacs), when the original price of goods were only Rs. 3 lacs and rest of the items added to make it above 10 lacs so that the jurisdiction of high court is availed. Can we challenge the suit on this point.

2.       What is the limitation period for filing of suit by a State Government undertaking.

3.       In cross examination, it is admitted by the plaintiffs that post dated cheques were received by them. But claims that the cheques might have been dishonoured, that’s why the claim. Wnen asked, why the dishonored cheques are not deposited in Court, no answer.

4.       Can the Court presurrize us to produce documents for a transaction made 20 years back and knowledge of suit comes to our notice after 18 years and the firm is closed in 1996.



Learning

 3 Replies

Advocate Ravinder (Advocate/Attorney)     11 April 2014

 

One. Whether the suit is maintenable in High Court (Jurisdiction: above 10 lacs), when the original price of goods were only Rs. 3 lacs and rest of the items added to make it above 10 lacs so that the jurisdiction of high court is availed. Can we challenge the suit on this point.

---Recovery of money suit will be filed in the lower court only. Not High Court.

 

Two. What is the limitation period for filing of suit by a State Government undertaking.

---Limitation is 3 years from the date of cause of action i.e. 4.1.1993.

 

Three.  In cross examination, it is admitted by the plaintiffs that post dated cheques were received by them. But claims that the cheques might have been dishonoured, that’s why the claim. Wnen asked, why the dishonored cheques are not deposited in Court, no answer.

---It is ridiculous to say that “Cheques were received but they might have been dishonoured”.  They should stick to one point only, either honourned or dishonoured.  This is one of the point for dismissal of their case by the court.  Since the govt had filed the case after 18 years, it has no jurisdiction to file the case. 

 

Four. Can the Court presurrize us to produce documents for a transaction made 20 years back and knowledge of suit comes to our notice after 18 years and the firm is closed in 1996.

---When the plaintiff had filed the suit, it is the plaintiff has to prove the case, your case is only to defend the same.  There is no need to produce documents for your side.  Instead of proving by yourselves, you can file an I.A. requesting the court to direct the Bank officials to produce the documents showing the details of honouring the cheques during that particular period. 

 

 

T. Kalaiselvan, Advocate (Advocate)     13 April 2014

Well advised by learned Mr.Ravinder, I agree with him.

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     18 April 2014

Fist find out when suit is filed and any prior notice before filing the suit is issued.

 

Raise the issue of limitation as prelim issue and fight on this point alone first.


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register