asokkumar v
Asked September 14, 2016

Friend Borrowed money and has not returned

  • 1 Answer
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My friend got money from me for business purpose. For surety he gave only (recive amount witness) Notary public affidavit bond. He told that he will return within few months but he not give the money still now. So how I get money please give me some legal advise

Answer 1

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SAURABH KUMAR

Under the Indian Limitation Act, Section 18, you have a time period of 3 years to recover an outstanding loan, provided the agreement is in written form and notified; as in your case.

You have the following options-

 

 Civil remedies The most common civil remedy for recovering money is Order 37 of the Civil Procedure Code, which allows a creditor to file a summary suit. Compared to normal suits, summary suits are disposed of faster. Once the suit is instituted and the summons are issued, the defendant has 10 days to make an appearance, failing which the court assumes the plaintiff 's allegations to be true and, accordingly, awards the plaintiff. If the defendant makes an appearance, the court accepts his defence only if it is convinced that it is substantial to the case in question. Where the matter concerns penalties or any other uncertain amount, one cannot file a summary suit. Another option is the Negotiable Instruments Act, 1881, which only deals with the recovery of money arising from instruments such as bills of exchange or cheques. The Act contains several sections, each outlining the procedure for recovering money under a specific instrument . For instance, Section 138 explains the procedure to deal with a bounced cheque, whereby a legal notice is to be sent to the defaulter within 30 days of receiving the cheque return memo. If the cheque issuer fails to make a fresh payment within 30 days of receiving the notice, the payee has the right to file a criminal complaint under this Section. However, the complaint should be registered in a magistrate's court within a month of the expiry of the notice period, otherwise your suit will be time-barred . If found guilty, the defaulter can be punished with a prison term of two years and/or a fine, which can be as high as twice the cheque amount. Criminal proceedings You also have the option of initiating criminal proceedings against the defaulter under the Indian Penal Code, 1860. You can either file a case of criminal breach of trust or cheating, or even mischief. However, criminal proceedings usually take a long time to conclude. So you may end up wasting valuable time and effort in court to recover your dues.

Sections under which a case can be filed-

Section 406 covers criminal breach of trust under the Indian Penal Code.

Section 417 tackles cheating under the IPC.

Section 420 covers punishment for cheating and dishonestly inducing delivery of property under the IPC.

Section 426 covers punishment for mischief under IPC

 

Out-of-court options One of the fastest and most economical ways of recovering money is to opt for an out-of-court settlement, such as arbitration or conciliation, provided that the other party is also willing to settle in this manner. If the matter is referred to an arbitrator, the latter hears both the parties and passes an award binding on both. The award can only be appealed on three grounds. One, if it is invalid, two, if the defendant is not given adequate time to present the case, and three, if he was not given notice about the arbitrator's appointment . In fact, if a proposal by an inter-ministerial group set up last year to look into policy and legislative changes to tackle the large number of pending cases is accepted, then the cases of dishonoured cheques will have to be decided only through arbitration, conciliation or settlement by lok adalats.  

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