Yes it is worth to file a summary suit in same as there are proof of payments and there is no proof of return of single rupee . Also the debt it is admitted.
Summary suit
Sirs, Plaintiff paid amount to Defendant 100% by Cheques in 2017 for acquiring some Land and he has Original Bank Statement containing entries there for. MOU was made But Plaintiff lost copy thereof but Defendant do not know about it For one or other reason, the dealing was not materialized. Hence, Plaintiff demanded back Money from Defendant to which Defendant agreed to pay but failed even after several reminders Plaintiff sent Advocate’s Notice to Defendant demanding Money from him Defendant sent Reply to Plaintiff’s Notice. In the said Reply the Defendant admitted that he received amount and he further admitted that he agreed to repay the amount to Plaintiff but he falsely claimed that he repaid whole amount in last 2 years to Plaintiff in cash But Defendant did not mention dates of repayment and did not talk of receipts signed by Plaintiff and further he failed to reveal name/s of Bank/s where from he repaid to the Plaintiff Just for raising false dispute he stated false that he has paid Whether summary suit is worth in above circumstances wherein Plaintiff have proof of payment and Defendant admitted too but raised false claim of repayment without any proof as stated above Please guide HARIOM
Asked 4 years ago in Civil Law
15 Answers
It's not summary suit but money recovery suit which must be filed to recover money.
I'm prepared and willing to file it and take it to it's logical conclusion.
Your case is 100% fit for summary suit proceeding.
1) file summary suit to recover your money with interest
2) rely upon bank statement of transfer of funds , legal notice issued , reply to legal notice wherein he admitted his liability to make payment
3)defendant has to prove that he repaid money by making cash payment
plantiff can file recovery of money along with interest. Bank entry of the said cheque transaction will help as documentary support.
You can contest the summary suit if filed before the court. Yes it's maintainable.
sirs, Plaintiff's Advocate sent Notice to the Defendant calling upon him to pay the Money. In the said Notice Advocate very well mentioned that Mr. XYZ is POA Holder of the Plaintiff. The said Notice was signed by Advocate and at the place of client's signature in the Notice, POA Mr XYZ of the Plaintiff has signed as under :- sd/- for Client Signature (Mr XYZ) Mob. No. Defendant sent Reply through his Advocate to the Plaintiff;s Advocate and stated in the said Reply as under :- The copy of POA is not sent to my client and hence the said notice sent by you is false. And further that you sent Notice on behalf of Plaintiff but you did not took signature of Plaintiff but you sent Notice bearing signature of Mr XYZ on behalf of Plaintiff. Thus you committed 'PROFESSIONAL- MISCONDUCT' as per ADVOCATE ACT." In the Notice sent by Advocate of Plaintiff it is clearly stated that the said Notice is on behalf of Plaintiff and further that the Plaintiff has given POA to Mr. XYZ and Mr XYZ signed in the manner described above Please guide HARIOM
Asked 4 years ago
You can reply the notice through advocate, if already replied then it's fine. Now it's their lookout to proceed with the same
No defendant advocate doesn't have any right to hold the other advocate of professional misconduct. If he feels he can go forward and file a detailed affidavit in bar council
The question of plaintiff signig the legal notice doesn't arise, as it's aldvocate's notice ie on the letter head of advocate.
Plaintiff will sign the plaint; if and when it's presented before court
No it's not noble on part of defendant"s advocate to blame plaintiff for professional misconduct. Rather it's bizarre and stupid on these two counts:
a) as already explained, plaintiff doesn't sign the legal notice.
b) only the client of advocate can blame him/her of professional misconduct, not any other person; because the professional services are offered to the client only; not to any other person.
See there is no issue in same firstly.clients signature is not required in notice secondly if POA of the plaintiff has signed and there is POA then in that case notice is valid.
Not necessary to send POA with notice
2) not necessary that legal notice should bear client signature
Summary suit under commercial courts act can be filed
Parties have to undergo compulsory pre suit mediation as per amendment to Commercial courts act
Supply copy of POA to defendant's advocate and satisfy him
Nothing this sort of thing is required in sending legal notice. Ignore all this.
Yes summary suit will be a very good option for recovering the money from defendant. But for that you need proof of deal between both parties.
In my opinion, I am afraid the evidences in possession of the plaintiff may not be sufficient to file a summary proceedings against the defendant.
Mere bank statement for having given money is not sufficient especially in the event of the defendant replying to have repaid the entire amount, so to prove by either side would depend on the trial proceedings and not depending on the bank statement alone.
The defendant's advocate is right in in his objection to the legal demand notice sent by the plaintiff's advocate signed by the power agent without enclosing a copy of the power of attorney deed.
This can be disputed by them at the initial stage however this dispute can be solved by producing the copy of the deed in the suit as one of the documents filed on the side of plaintiff.