• Refund of booking amount and 1st dishonoured of cheque for flat booking

Three year back, in March 2015, I made a booking for a flat in a project by paying 20% of basic amount. Payment was made through cheque and builder has acknowledged this by giving me stamped receipt, agreement letter & a Instrumental Cheque dated after 3 year with booking amount plus 12% interest for three years. As per agreement, if i am not satisfied with progress of the project or i am not interested in this booking, after 3 years I have liberty to withdraw the amount by using Instrumental Cheque and my allotment will be considered as cancelled. Now, it's April 2018 and project work has not started. So, to withdraw my booking I deposited instrumental cheque dated March, 2018 in my account for its clearance without giving any notice to builder, which was not required, as per agreement. But, this cheque was dishonoured first time. Please suggest me what should I do now. Should I talk with builder or take help of lawyer.
Asked 4 years ago in Property Law
Religion: Hindu

2 answers received in 30 minutes.

Lawyers are available now to answer your questions.

17 Answers

As now as per agreement you have already put cheque in process and it get dishonoured since the limitation to issue notice in cheque bounces is one month issue a cheque bounce notice to builder under NI act and. Ask builder to repay within 15 day otherwise you shall file a complaint under 138 NI act.

Get a notice drafted from lawyer the builder shall refund your amount as cheque bounce is criminal liability and he can be arrested for same.

You have acted as per agreement so no need to talk to builder you can formally talk to him if he repays in day or two it's good.otherwise issue a notice. Keep in mind the limitation otherwise your cheque bounce case shall not be maintainable.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

What is the date on cheque return memo of the bank and reason for the dishonor of the cheque.

Dalip Singh
Advocate, New Delhi
1040 Answers
36 Consultations

5.0 on 5.0

Hello ,

Send the buider a legal notice and if not complied file a case under section 138 of the N.I.Act.

Hope this helps

Regards.

Swarupananda Neogi
Advocate, Kolkata
2941 Answers
6 Consultations

4.7 on 5.0

Since the cheque is returned without making payment, you can issue a legal demand notice to the builder about this and can demand payment by cash for the bounced cheque amount .

If the builder is not responding or not complying with the demands made, you may file a cheque bounce case under section 138 NI act and drag him to the court of law for relief and remedy.

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

Section 138 of the Negotiable Instruments Act can come to your aid here. It deals with dishonour of cheques on account of insufficiency of funds in the drawer’s account (in this case the builder) and provides for imprisonment of up to two years and fine that may be as high as twice the cheque amount. All that is needed is for the dishonoured cheque to have been issued for the discharge of a legally enforceable debt or liability (apparently the case here).

To bring this particular provision into play, the aggreived drawee (in this case you) is required to serve the drawer with a legal notice demanding that he pay up. This notice is to be served within 30 days of the receipt of the information of the dishonour of cheque from the bank. The drawer then has 15 days to pay up, failing which the drawee is at liberty to file a complaint under the Negotiables Instrument Act against him in accordance with Section 142 of the said Act. The time limit for filing the complaint is 30 days from the expiry of the 15-day notice period.

In case you are wondering—and if you have been slow to act—you can present the cheque multiple times during its valididty period.

Pulkit Chandna
Advocate, New Delhi
191 Answers
5 Consultations

4.9 on 5.0

1) you should inform builder that you are not happy with progress of work and want to cancel your allotted,ent as per terms of agreement

2) mention that cheque issued has been dishonoured

3) request builder to make payment within period of 15 days of issue of notice

4) if builder fails to make payment file complaint before consumer forum and seek orders to direct builder to refund your money with interest

5) also seek litigation costs and compensation for mental torture undergone by you

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

Yiu can first talk to him about the same. Later you can consult a lawyer and send him notice under section 138 of Negotiable Instruments Act.

Prashant Nayak
Advocate, Mumbai
27275 Answers
88 Consultations

4.4 on 5.0

You need to send him a legal notice for the payment of the cheque amount with in 15 days from the receipt of the notice along with the legal cost to send the notice. If he fails to make the payment with in stipulated time file a case against builder under section 138 of negotiable instruments act for the dishonour of the cheque and under section 420, 406 of IPC for cheating and misappropriation.

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

Hello,

You send a legal notice to the builder and if the builder after receiving the notice does not refund back the money then go ahead and file a case u/s 138 of the NI Act.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Note that you must get in touch with a lawyer at the earliest, in order to take all the steps within time.

regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

You need to serve them a legal notice of dihonoured cheque within 15 days of date of return memo otherwise limitation period would be lapse.

Laksheyender Kumar
Advocate, Delhi
734 Answers
2 Consultations

4.8 on 5.0

1. First talk to the builder and inform him that you do not want to continue in the project and want refund of your money with interest. See what he replies.

2. If you get a negative response from builder then you have 2 remedies against him. File a cheque bouncing complaint against after giving him the statutory legal notice. This is remedy under criminal law.

Second remedy is under civil law. If your builder has registered the project with RERA, then you can approach RERA tribunal by filing an online complaint. This is much faster. Even if your builder has not registered the project with RERA, the non-registration itself of an ongoing project becomes a ground for complaint to RERA as under the law the builder is mandatorily required to register an ongoing incomplete project with RERA. You can either seek refund of your entire money with interest and compensation or you can choose to continue in the project and seek interest plus compensation for delayed possession.

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

Since you have already sent a notice demanding money on the cheque which was bounced, you can pursue the matter through court of law for cheque bounce case.

A fresh lawyer notice is not required if you have already made a demand through your notice.

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

Yes if you know the alternate address serve a copy of said notice on that address also along with a mail on builders id, if he donot reply then file a complaint under 138 negotiable instrument act. And show that you have taken enough steps for service of notice but the builder is evading notice.

Also you have already served the notice but since there can be dispute in it because peon may not be authorised to receive the notice but you have defence as served on his office so you can file a complaint now only without lawyer notice because limitation period is important in 138 cases.

The magistrate shall issue summons to the builder for the presence in court if he is not present even then a Non bailable warrant can be issued against him by court.

Kindly adhere to limitation as mentioned in previous answer for notice and filing complaint.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

if legal notice is returned with remarks office closed file complaint against builder before consumer forum as advised herein above

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

Sending the legal notice under section 138 is sufficient. You need not see to it that the notice is received by the builder. That you will have to take care of when you file a criminal complaint against builder in magistrate court. But ensure that the legal notice is issued within 30 days of receiving bank memo stating cheque dishonored due to account close.

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

Hello,

You may send a notice to the personal address of all the builders and thereafter if the notice is not served then you may file the case.

Please take care of the time line to file a case under section 138 of the Negotiable Instrument Act.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Ask a Lawyer

Get legal answers from lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer