From examining all the facts of your query I want to say that-
These cases are very common in various Courts of India and Supreme Court of India. I can understand your concern in this regard. Legal options are always available for you. The Scariest thing about lending money to people is the fear of them not returning your money back.
You can file a civil suit for recovering the money he owed through promissory note or loan agreement or even there is no agreement per se. You can do so under Order 37 of CPC which allows the lender to file a summary suit. You can file this suit in any high court, City Civil Court, Magistrate Court, Small Causes Court. This suit consists of an important declaration stating the specific relief the lender pleas and the relief should not be beyond the ambit of the order as final relief. The first step is drafting the summary suit and then it should be summoned to the person who borrowed money. The court requires a certain document to produce before them, along with the plain copy and summons. Once the suit is filed, the defendant will be asked to appear before the court within 10 days. If the person failed to appear, the lender has to show the summons he sent before and then the court orders him to send another summon. If the person has any defence he can claim before the court, if not the court will assume the lender’s allegation as true and reward the judgment accordingly. This would be a civil remedy.
To take criminal action the lender has to prove that the person had committed criminal breach of trust and had not returned back the money. You can file police complaint under Sec 420 of IPC as against the person whom you had to lend the money. Sec 406 of IPC for Criminal Breach and if the court finds guilty, the person will be imprisoned and has to repay the money he borrowed. Generally, the court takes a long time for the cases filed under this section.
You can take both civil and criminal remedies together according to Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn.) of Supreme Court. Legal notice through Advocate can also be sent. I & my junior Advocates have sorted these issues by sending legal notice for various clients in India and abroad. A legal notice is, therefore, a formal communication to a person or an entity, informing the other party of your intention to undertake legal proceedings against them. This notice, when sent, conveys your intention before the legal proceedings and thus, makes the party aware of your grievance. Many times, a legal notice served will bring the other party on heels, and the problem can get resolved out of court too, with fruitful discussions on both sides. And, if the other party is still not heeding to the grievance, one can always start the court proceedings after a particular interval, as stated by the law. Although a legal notice can serve as a purpose of negotiations between the parties and save time, effort and money that are usually spent in court cases.
The lender may opt for out of court settlement for recovering the money dues through arbitration, conciliation or Lok Adalat. It is one of the economical and fastest ways for recovering. For out of court settlement both the parties should be willing and has to appear for the hearing.
There must be a oral contract in your case. Moreover, there is bank transaction statements available. WhatsApp Chats will be considered as evidence according to recent judgements of Supreme Court.
Acknowledgement generally means acceptance or admission of something that exists. Section 18 of the Limitation Act, 1963 uses the term acknowledgement to mean an admission of an existing liability in lieu of which the period of limitation is extended. A perusal through section 18 of the Limitation Act indicates certain conditions to be fulfilled in order to emphasize acknowledgement.
-That the acknowledgement of liability must be in writing.
-That the acknowledgement of liability must be made before expiry of limitation period for filing the suit. If limitation has already expired, it would not revive under section 18 of the Limitation Act according to Sampuran Singh & Ors. Vs. Niranjan Kaur & Ors. (1999) of Supreme Court.
-That the acknowledgement of liability must be unqualified and must be in unambiguous, clear terms.
-That the acknowledgement must be signed by the person or his authorised agent admitting liability.
Please understand that it may be clarified that 'acknowledgement' under section 18 of the Limitation Act and 'promise to pay' under section 25(3) of the Contract Act, 1872 are different even though both have the effect of creating a fresh limitation period. Where section 18 grants a fresh period of limitation only in cases where acknowledgement is before expiry of limitation period; section 25(3) comes to the rescue in cases where period of limitation has already expired. However, can we treat an acknowledgement of liability as a promise to pay? In affirmatively answering the question the Delhi High Court has held that any written acknowledgment after the confirmation of the balance amount can safely be treated as a promise to pay and not mere acknowledgement.
In your case, acknowledgement is after the expiry of the limitation period of 3 years. So, the case of Sampuran Singh & Ors. Vs. Niranjan Kaur & Ors. (1999) of Supreme Court mentioned above will apply in your case. Acknowledgement on 12 January 2021 to return 13 L is after expiry of limitation.
In the matter of Rajender Singh v. Santa Singh, it was held by the Supreme Court that the object of the Law of Limitation is to prevent disturbance or deprivation of what may have been acquired in equity and justice by a long enjoyment or what may have been lost by a party’s own inaction, negligence or latches.
The law of Condonation of Delay keeps the principle of natural justice alive and also states the fact that different people might have different problemas and the same sentence or a singular rule may not apply to all of them in the same way. Thus it is essential to hear them and decide accordingly whether they fit in the criteria of the judgement or whether they deserve a second chance. You can provide appropriate reason in not approaching Courts earlier in this regard. In case, the sitting judge understands the reasons and find it appropriate, they will condone the delay and decide the case accordingly.
You may contact my secretary to connect with me for clarification.
Advocate on Record & Amicus Curiae,
Supreme Court of India