I was Director of a software company Nov,2014 to July,2015. I resigned in July,2015. at the time of resignation i gave a cheque dated 19.10.2015 for 3 lac as a security for seed capital for my share of 25%. they have presented the cheque in bank on 27.1.2016. which was bounced due to insufficient funds. after that i have been issued notices on 23.06.2016 and 1.8.2017. Now i have received summons from court "Claim: Suit for recovery of money of Rs.3 lakhs' Plaint filed under order 7 Rule 1&2 R/W section 26 of C.P.C.
How can i defend myself. Sir please guide me.
Asked 5 months ago in Criminal Law from Hyderabad, Telangana
You will have to appear before the court and procure the copy if the suit that has been filed.
Share the copy of such suit with some lawyer to decide the future course of action. The reply can only be told after seeing the allegations.
As of now I can say that delay can be ine ground that you can take.
Advocate, New Delhi
Engage a counsel to appear. As it is for recovery, you need to go through the plaint to prepare your defence. Without going through the plaint, it will be difficult to suggest.
You can take a defence that your signed cheque was stolen from your table or office.
Suit for recovery have been filed against you, now here it is important that any share have been on your name or not for which you issued the cheque.
Simply deny the allegations in the reply and search out for some grounds and proofs of your favour which are connected to the policies of the company where you served as director.
Hello sir , it's a civil proceedings ... You can file a reply to the plaint filed through a lawyer and join the proceedings ..
Advocate, New Delhi
They need to prove ur liability. If u have liability then u r a dead duck or else u can file maintainability petition questioning the filing
Thank you all for replaying .
I have few points.
1. They presented the cheque on 27.1.2016 which was bounced and they issued notice on 23.6.2016 will it be help me as a defend point.
2. I have give a cheque as security to seed capital of my share. but they have presented it in bank without any legal notice. My point is a cheque was given under the security deposit can be present as they like.
3. if I lose this case what will be the consequences.
thanks in advance.
Asked 5 months ago
Hi, since they are initiating civil proceeding of recovery suit and not criminal complaint under 138 NI Act therefore it is maintanable ..if the decision is against you court will pass a decree agianst you to pay the amount .. No Criminal punishment can be passed by the court
Advocate, New Delhi
It can not be presented like this.
But they have wisely filed case under order 7 rule 1 &2 and not under 138 of NI Act
That is why I am asking you to share the copy of the suit.
Advocate, New Delhi
You have to contest your case. Appear before court engage lawyer.
They filed a civil suit for recovery of money. Read the pliant carefully and take the contentions the cheque was given as security for seed capital for your share of 25%.File a written statement with the help of local lawyer. If you loose then you have to pay the amount as per the decree.
Then u need to prove the cheque was security deposit one
civil suit has been filed against you to recover the cheque amount
2)even if cheque is given as security deposit it can be presented if there are any dues payable by you
3) in your defence take the plea that there is no debt due and payable
did you submit any reply to legal notice dated 23.6.2016?
2)if you lose the case you will have to pay Rs 3 lakhs with interest as per court orders
3)if you fail to comply with court orders execution proceedings would be taken to attch your property and it would be sold to recover the dues
1. Engage a lawyer for your defence.
2. The onus is on the plaintiff to prove its claim against you.
3. The limitation period to file a suit for recovery of money is 3 years from the date on which the amount is demanded and not paid. So the delay on their part in issuing the notice is inconsequential.
4. The civil court can only pass a decree for recovery of money with interest. If you fail to honour the decree then the civil court can remand you to jail.
1. Yes. You can defend by saying that had you received the notice on time, you would have cleared the payment.
2. They can present the issued cheque with their banker without intimating you as issuing the cheque itself means that you are authorizing the drawee to present the cheque with their banker for encashment even the issued cheque is meant for security deposit.
The company knows that they cannot file cheque bounce case against you as they did not send you the demand notice within 30 days of bouncing of the cheque which is mandatory for filing cheque bounce case. Thus, they filed money recovery suit against you to recover the money. If you lose the case, you will be ordered to pay the amount due along with interest and if you fail to pay the decreed amount and upon filing execution petition by the company, either your assets if any, will be attached or you will be sentenced for civil imprisonment. Therefore, engage a good civil lawyer and contest the case on merits.
AS I UNDERSTAND IT:
1. You can circumvent /scuttle the recovery suit, by a plea that "Security deposit" is NOT a liability. Hence Criminal /Civil complaint is not maintainable.
2. Criminal /Civil proceedings are maintainable only for confirmed legally enforceable Liability, which means that the Liability should be pre-existing in the Co.'s Books of Accounts. The issue of 25% Share (for seed capital) is premature, more so since you have resigned as Director and were probably applying as a Public member.
Keep Smiling .... Hemant Agarwal
Before answering your query, the below mentioned information and/or details are required to give you most appropriate reply:
1. Contents of your agreement with the Company i.e., terms and conditions etc.
2. Confirmation that the cheque issued by you is dated 19.10.2015.
3. Said chequue was presented on 27.01.2016.
IF ANSWER FOR Point No.2 & 3 above is YES:
Then you are safe, i.e., the validity of cheque is ONLY THREE MONTHS from date of issue of such Cheque *****
Going by the above fact, you have the best possible ground to contest the case.
You can also take action against the Bank for acting on the same IN collusion with the Company without RETURNING it as it was presented beyond the mandatory period of 3 months.
All said and done, you need to contest the money recovery case filed against you by filing your pleadings and also action taken against the Bank and also your colleagues etc. (mandatory)
Further details / guidance can be shared upon getting clear details of your understanding with your colleagues.
If this cheque was not issued towards discharge of a legally enforceable debt, this case is not maintainable.
Contest this case by entering appearance through a lawyer and defend the matter.
Advocate, New Delhi
1. As it is for recovery before the civil court, that notice may not be one of the factor to dismiss the petition.
2. It is in s.138 NI, that the cheque should have been given towards, debt or liability, therefore your transaction will help establish that you have not borrowed.
3. Pay the money along with costs.
Your opposite parties filed the civil case for recovery of the amount and you have to establish through the oral and documentary evidence before the court that it was no way related to the suit claim filed by them. Unless I go through the plaint copy I cannot advise about your defence.
1. this is not a point. they may say that they gave you second chance.
2. if you loose you will have to pay fine or go to SI for some months..
my advice : gift all your property to your relative and show that you are bankrupt. then you dont have to pay.
Since it is barred by limitation to file a cheque bounce case they have filed a civil money recovery suit agaisnt you on the basis of the consideration mentioned in the bounced cheque.
You have to defend your interests on the basis of the reasons and merits in your side
If you are liable to pay them, then you may inform the court about this and seek time to settle the same in installment wise.
The court will accept your genuine reasons.
1. It is very much valid becasue they have not filed cheque bounce case.
You cannot take a defence in that angle since the limitation for this is three years.
2. They can very well deposit the cheque with the bankers for collection, for this they need not give any notice to you.
3. You may have to pay the suit amount.
As you have already so many advices received, I can add a few lines. The cheque has been presented after expiry because the three months period of validity expires on 18.01.2016. No notice was issued to you immediately i.e. within 15 days and the case filed in under limitation. Further, you may defend the case your own, but it is better to consult a lawyer.