• Money given to friend and not returning

I had given money to a friend through cheque/online payment but no written agreement and its been years he is not returning it, everytime when i ask he gives some or other reasons. I have whatsapp communication with him since 2016 till today which clearly shows everytime he says will arrange but he giving some or other reasons to avoid which is unrealistic. He says he does not have money but on other hand he buys expensive stuff like iPhone 12 Pro for which i have his social media proofs.

I can be contacted on my Whatsapp no +[deleted] (Not a calling no)


In absence of any signed agreement but hving whatsapp communication since 2016, is there chance i can win case against him and recover my money. If so i want to file a case against him.
Asked 8 months ago in Criminal Law
Religion: Hindu

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14 Answers

Since you sent money through online mode you have enough evidence of giving him loan.

However there is one hurdle in filing the civil suit  and that is since more than 3 years has passed from the date of first payment the suit is barred by law of Limitation.

Now unless and until there is any written acknowledgement by him within the last 3 years you can file civil suit.

However there is no bar in filing criminal case of cheating. 

Devajyoti Barman
Advocate, Kolkata
22515 Answers
363 Consultations

5.0 on 5.0

Difficult as there is no binding document or cheque.

Regards 

G.Rajaganapathy

High Court of Madras

Rajaganapathy Ganesan
Advocate, Chennai
2001 Answers
8 Consultations

4.9 on 5.0

Yes you have chance to win the case as digital evidence is valid in the court of law. Initially you send him a legal notice.

Ganesh Kadam
Advocate, Pune
12193 Answers
151 Consultations

4.9 on 5.0

Your claim is barred by limitation 

 

suit if any to recover money should have been filed within period of 3 years of non payment 

 

if there is acknowledgment of liability by your friend then you can sue your friend to recover your money within period of 3 years of such acknowledgment 

Ajay Sethi
Advocate, Mumbai
84092 Answers
5490 Consultations

5.0 on 5.0

Dear sir,

The Scariest thing about lending money to people is the fear of them not returning your money back. Generally, the lender has to issue a gentle reminder about the repayment of the loan. The lender may also suggest certain money returning plan, for instance, a monthly EMI plan or a quarterly plan to the person. Inspite of all this, if the person is not repaying the money, then the lender has to send a letter or a legal notice stating the date of the loan, the exact amount borrowed and also the repayment terms. The letter should be certified and should demand a response. If none of the above steps works out, then he has to consult a lawyer and file a suit against the person who has not repaid.

Legal Actions to be taken:

The lender should lend the money only after signing the promissory note or the loan agreement which has the terms and conditions stated clearly. In case of default in the payment of money, the lender can approach the court and file a civil suit for recovery of money or a criminal suit for fraud/ breach of an agreement.

CIVIL SUIT:

The lender can file a civil suit for recovering the money he owed through promissory note or loan agreement. He can do so under Order 37 of CPC which allows the lender to file a summary suit. He 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.

The lender can also file a suit under the Negotiable Instrument Act. This can be filed only for people who did not return the money which was borrowed by the lender via cheques, bills of exchange etc. For instance, the person returned the money through cheque to the lender and later if he found it has bounced, the lender can file a suit under Sec 138 of NI Act and the person has to repay within 30 days. If the person fails, the lender can further file a criminal Suit against him. If the court finds him guilty, the person will be imprisoned for two years and also has to pay double the amount of the cheque issued.

CRIMINAL SUIT:

The lender has to prove that the person had committed criminal breach of trust and had not returned back the money. So he can file a suit under Sec 420 of IPC as the person whom he had to lend the money has cheated him and also under 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.

 

If a person has still not fully returned the money then the lender has to send a letter stating the loan date, the exact amount borrowed and also the repayment terms which will be a form of a legal notice

If none of the steps works out, then you have to consult a lawyer and file a suit against the person who has not repaid.

Talk to your friend and understand what's stopping him from the repayment. If he is in a difficult situation, give him the option of repayment in instalments. Give a monthly timeline to return the borrowed fund slowly. Help the friend form a budget or an investment plan to raise the money. if all these measures do not work, you can file a case against him.  first of all send him legal demand notice for the return money. If fails to return your money then you can file police complaint against him.

you need to keep all the WhatsApp chats and not delete them, the cheque and online transaction are in your favor. keep a record of them as well.

you can also claim interest on the sum lent to him.

 

Anik Miu
Advocate, Bangalore
2517 Answers
26 Consultations

4.9 on 5.0

It is acknowledgment of liability 

 

file case to recover your money with interest 

Ajay Sethi
Advocate, Mumbai
84092 Answers
5490 Consultations

5.0 on 5.0

What is amount and where does your freind reside?

Ramesh Pandey
Advocate, Mumbai
2541 Answers
8 Consultations

5.0 on 5.0

- As per law, you can recover the said given amount on loan from your friends within 3 years from the date of payment . 

- Since, you have given the said payment on loan to your friend through cheques and online , then on this ground of payment proof , you can recover amount from him legally with the proof of payment via whatsup. 

- You should send a legal demand notice him for asking the said amount . 

- If, no response, then file a recovery suit before the court .

 

.You can contact me for sending the legal notice via kaanoon.com 

Mohammed Shahzad
Advocate, Delhi
7995 Answers
85 Consultations

5.0 on 5.0

Yes, I have intention to return your 13 Lakhs.

Ganesh Kadam
Advocate, Pune
12193 Answers
151 Consultations

4.9 on 5.0

The claim for the return of money given by you to him is sadly barred by limitation.

You can make a claim for your money or file a money recovery suit only within three years from the date of transaction.

Since you have lent the money  more than three years ago, you can not legally initiate any action for recovery.

However if he gives an acknowledgment in writing for this loan at this date, the limitation will restart from this date after which you can file the money recovery suit. 

T Kalaiselvan
Advocate, Vellore
74182 Answers
1204 Consultations

5.0 on 5.0

What if he denies the WhatsApp acknowledgment?

I am afraid that you may not be able to file money recovery with the aid of the evidences in your possession because they are not admissible as primary evidence before court of law. 

T Kalaiselvan
Advocate, Vellore
74182 Answers
1204 Consultations

5.0 on 5.0

You can file a civil suit or cheating complaint in the above case. If you have taken his cheques you can also use them and file a case of bounced cheque against him

Prashant Nayak
Advocate, Mumbai
24248 Answers
51 Consultations

4.4 on 5.0

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.

They are:

-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.

 

Gopal Verma,
Advocate on Record & Amicus Curiae,
Supreme Court of India

Shri Gopal Verma
Advocate, New Delhi
308 Answers
5 Consultations

4.0 on 5.0

have you sent him a legal notice?

please start preparing up few documents for your case by issuing these notices so as to prove your case in the court when you file a case.

 

Garima Anil Mehrotra
Advocate, Mumbai
514 Answers
1 Consultation

4.9 on 5.0

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