• Is to serve a legal notice a mandatory before recovery suit

I stood as guarantor to the agreement, between my partner and his friend. Agreed funds were routed through my bank by my partner's brother and his nephew.. Official revenue stamped receipts were handed over to my partner for the specific funds routed through my bank. Now my partner and his brother had a financial dispute. Partner's brother and his nephew filed a money recovery suits against me without giving me any legal notice. I was shocked. There is no any document between me and his brother or nephew. Is it not mandatory to serve a legal notice on me before filing money recovery suit, alleged as hand loan to me. Now it is about 2yrs 10Months and 14days from the date of transaction(30.10.2013) to filing suit(14.09.2016). Kindly suggest me the recourse. Can file a petition asking to implead my partner for all these unwanted issues. Thanks a lot.
Asked 7 years ago in Civil Law

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7 Answers

1)it is not mandatory to issue legal notice before filing summary suit

2) you have to file detailed affidavit in reply denying your liability to make payment

3) plaintiff has to prove allegations made in plaint to be entitled to any relied

4)your plea should be that funds were routed through your bank for payment to your partner by his brother and receipt issued by partner

Ajay Sethi
Advocate, Mumbai
95217 Answers
7612 Consultations

5.0 on 5.0

1. Sending of legal notice is never mandatory before filing a money suit.

2. If you did not took the money from them then there is nothing to worry.

3.Yes, you can file a petition under order 1 rule 10 of cpc to make your artner added as a party to this suit.

4. Since the suit is filed after 3 years you can file a petition for rejection of plaint as it is barred by limitation.

Devajyoti Barman
Advocate, Kolkata
22921 Answers
498 Consultations

5.0 on 5.0

Notice in recovery suit is not mandatory but it is optional. But suit filed for recovery of money without issuing demand notice will advantage for you and you can take one of ground to your defense. Money suit can be filed within 3 years from the date of transaction. Yes you can file petition before Hon'ble Court seeking implead your partner as a party to suit proceedings.

Lakshmi Kanth
Advocate, Hyderabad
446 Answers
15 Consultations

4.7 on 5.0

1. It is required to send you a notice seeking/demanding the relief sought in the plaint inconnection with bthe case filed against you.

2. Such notice is called 'Demand for Justice'.

3. After failing to get any response within the stipulated period mentioned in the said legal notice, its sender can file the suit.

4. However, the suit will not be rejected on the ground that no legal notice was sent prior to filing the suit.

5. You shall have to contest the case on merit on the ground that you are not a party to the case and has allowed your bank account to be used only as per their request.

6. However, you shall have to explain as to what was the reason for your agreeing to allow them to route the transaction through your bank account.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

1. It has been accepted severally by various Courts based on Supreme court Judgment that security cheque does not come under the purview of section 138 of N.I. Act.

2. You can file a petition for adding the name of your partner as the relevant party in to the case.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

I was shocked. There is no any document between me and his brother or nephew. Is it not mandatory to serve a legal notice on me before filing money recovery suit, alleged as hand loan to me. Now it is about 2yrs 10Months and 14days from the date of transaction(30.10.2013) to filing suit(14.09.2016). Kindly suggest me the recourse. Can file a petition asking to implead my partner for all these unwanted issues

Order 37 of the Code of Civil Procedure, 1908 does not say or specify or support that notice has to issue before failing common suit or summary suit.

No mandatory requirement to issue notice before filing money suit either in general provision or in summary.

Notice is only optional, not mandatory.

As there is no statutory requirement of service of notice, there is no statutory period fixed for such notice.

If you feel that this suit is not maintainable then you contest it strongly and defend your interest in the trial proceedings based on the merits in your side including the documentary evidences that are in support to your defence.

T Kalaiselvan
Advocate, Vellore
85420 Answers
2239 Consultations

5.0 on 5.0

Kindly put the apex court decisions where it is given verdicts on Post Dated Cheques and Security only cheques.

You can engage the services of an advocate for this purpose or can browse through internet for various judgments as desired.

T Kalaiselvan
Advocate, Vellore
85420 Answers
2239 Consultations

5.0 on 5.0

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