• I want to file section 138 on builder, how valid my case will be?

My father had given 5 lacs to builder in 2017 to book flat in his new construction, which was about to start.

Even after year it didn't start, so builder said, he will give us flat in his ready building, lets call it R, above his office (location: Navi Mumbai), that Flat belongs to investor and not registered yet. He asked us to give him more 13 lacs and he will add more 20 lacs 
and give that money to investor and then get flat for us.
We given him more 13 lacs rupees and decided to take loan for remaining 29 lacs. He made receipts of 18 lacs on name of building R.

In 2018, flat still was not registered. Builder said, he is still arranging money. He also asked us to give more 2 lacs to him. we given him more 2 lacs and while he considered 2 lacs interest (as he used our money over time) and made receipt of 4 lacs on name of building R.

Still he didn't register that flat on our name but kept giving excuses like rera etc. We also understood that flat comes under Gawathan (7/12) and thus loan is not applicable.

We demanded our money back. After lots of argument, he given us flat in his another building, only to keep it with us until he doesn't return our money. He made rent agreement between me (not my father) and tenant for year which completed in dec 2018 and then no renewal while tenant still send rent to my father bank account.

In February 2019, he given us cheques of total 22 lacs ( our money plus interest), which got bounced on 28 February.

I am planning to file section 138 on him, i need guide, if my case will be valid and shall now i ask tanant to stop giving me rent.

Secondly, with involvement of local corporator, he is ready to give money by 1 may and according to corporator i should not send notice otherwise he will get more time in court. 

Can i redeposit Cheque after 1 may and then send notice of 138 on bounce of cheque at second time.
Asked 1 month ago in Property Law from Navi Mumbai, Maharashtra
Religion: Hindu

You need for send a legal notice to him within 30 days of bouncing of cheque.  In your case 30 days have expired,you need again redeposit cheque and bounce the same and send notice through lawyer.  After that if he doesn't pay the money within 15 days of receipt of your notice then within next 30 days you need to file a complaint before court under section 138 of negotiable Instruments Act

Prashant Nayak
Advocate, Mumbai
8314 Answers
11 Consultations

4.8 on 5.0

You can re deposit cheque and then on dishonour  of cheque file complaint against builder under section 138 NI of dishonour of cheque 

 

also file case of cheating  against  builder under section 420 of IPC 

 

also  file summary suit to recover your money with interest 

Ajay Sethi
Advocate, Mumbai
61330 Answers
3722 Consultations

5.0 on 5.0

Sure,

if cheque's validity is beyond 1 may you can wait till then and present it and take legal action after 1 may

validity of cheque is 3 months from the date on it

Suneel Moudgil
Advocate, Panipat
649 Answers
1 Consultation

4.3 on 5.0

Even stop payment instructions are issued on dishonour of cheque complaint under section 138 NI is maintainable 

Ajay Sethi
Advocate, Mumbai
61330 Answers
3722 Consultations

5.0 on 5.0

Yes even stop payment attract offence of 138 NIAct. 

Prashant Nayak
Advocate, Mumbai
8314 Answers
11 Consultations

4.8 on 5.0

Stop payment of cheque also attracts section 138 of NI act

Suneel Moudgil
Advocate, Panipat
649 Answers
1 Consultation

4.3 on 5.0

Hi, after the cheque is dishonoured the legal notice has to be sent within 30 days ..It is a provision under 138 Act ..It is advisable to get it dishonoured again and send the notice..After sending notice you have to file complaint within 45days

Hemant Chaudhary
Advocate, Gurgaon
4144 Answers
24 Consultations

4.9 on 5.0

The cheque is valid only for three months from the date of its issue.

The builder cannot be taken into confidence because he may again buy time after 1 May, hence instead of wasting time and getting the case barred by limitation, you better file the cae and then sit for negotiations during the pendency of the case.

Do not get duped by the words of the builder or any corporator because they will not come to your rescue at the time of crisis and you may have to suffer from all the sides, hence you better utilise this opportunity to take legal action against the builder now itself before it is too late.

T Kalaiselvan
Advocate, Vellore
51451 Answers
612 Consultations

5.0 on 5.0

Giving stop payment instructions is also an offence under section 138 NI act.

You can file a cheque bounce case even under that circumstances.

T Kalaiselvan
Advocate, Vellore
51451 Answers
612 Consultations

5.0 on 5.0

In case of valid liability you can go for cheque bouncing case even if it is a stop payment but please make sure that the check must- be valid till the date of deposit otherwise the option of depositing this check second time will lapse due to the cheque being stale cheque. Will be good if you can file cheque bouncing case now and withdraw the case in case you get your payment back

Vimlesh Prasad Mishra
Advocate, Lucknow
4900 Answers
12 Consultations

4.9 on 5.0

You can file 138ni act against builder. 

You can also file u/s 420 of ipc against builder. 

Mohammed Mujeeb
Advocate, Hyderabad
7081 Answers
3 Consultations

4.5 on 5.0

See already the limitation period for cheque bounce is over as it got bounced on 28 feb so you should have sent notice by 28 of march and then after notice period you should have filed complaint.

See validity of cheque is 3 months if that is not over by may then after 1 deposit same again get bounced and send notice and file a 420 complaint also. 

Shubham Jhajharia
Advocate, Ahmedabad
15323 Answers
63 Consultations

5.0 on 5.0

Yes stop payment cheques are also valid for cheque bounce

Shubham Jhajharia
Advocate, Ahmedabad
15323 Answers
63 Consultations

5.0 on 5.0

Validity of cheque is 3 months 

 

you can redeposit the cheque in May it would not be barred by limitation 

 

notice has to be sent  within  39 days not necessary builder should receive it within 30 days 

Ajay Sethi
Advocate, Mumbai
61330 Answers
3722 Consultations

5.0 on 5.0

you can deposit it again kindly do that send him a legal notice and then file a case within time period

Mohammed Mujeeb
Advocate, Hyderabad
7081 Answers
3 Consultations

4.5 on 5.0

present the cheque immediately in the bank and then wait till 1 may and if not made payment send legal notice through one prominent lawyer.

You can also present the cheque after 1may

Suneel Moudgil
Advocate, Panipat
649 Answers
1 Consultation

4.3 on 5.0

1. 138 case can be filed against builder

2. the statutory legal notice has to be issued to builder within 30 days of you receiving the bank memo stating that the cheque has bounced

3. the builder is then given time of 15 days from date of receipt of notice to reply to your notice

4. after expiry of 15 days, if no reply is received from builder, then within 30 days you can file a 138 complaint

5. the cheque bounced on 28th March. So the time for sending notice will expire on 28th April

6. you can issue the notice right away as the builder will have 15 days time to reply to the notice

7. if within that period he makes the payment then no need to file 138 complaint

8. dont wait till 1st may. Because you cannot send legal notice after expiry of 30 days from receipt of bank memo

 

Yusuf Rampurawala
Advocate, Mumbai
3883 Answers
16 Consultations

5.0 on 5.0

also a cheque is valid for 3 months from date of issue

so within the validity period of the cheque you can deposit it in your bank for encashment as many number of times you like

every time that the cheque bounces you get a fresh cause of action to file a 138 complaint

 

Yusuf Rampurawala
Advocate, Mumbai
3883 Answers
16 Consultations

5.0 on 5.0

No thos won't have any limitation on your case but then also I would advise you to send the notice.

See notice should be received within 30 days.

Shubham Jhajharia
Advocate, Ahmedabad
15323 Answers
63 Consultations

5.0 on 5.0

You have time till 26 may to redeposit it several times.  Once the date of 26 may is gone and you didn't sent notice then you will lose your right under cheque bouncing case

Prashant Nayak
Advocate, Mumbai
8314 Answers
11 Consultations

4.8 on 5.0

In my opinion you are taking more risks in this aspect. 

Suppose the 29th day is an holiday then what will you do?

Why do you want to wait without any reason?

You may discuss with your advocate on this and take a wise decision.

T Kalaiselvan
Advocate, Vellore
51451 Answers
612 Consultations

5.0 on 5.0

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