Recovering Loan given to a Friend
2 weeks ago
I gave a loan of Rs 5 lakh to a friend's business firm in Feb 2021 and got that documented in one notarized loan agreement. It was for a period of 1 year with 2% rate of interest pm. As a security he gave me 2 cheques of Rs 2.5 lakh without any date. He paid me money for 2-3 months only and in between asked for more loan money which is all online. In total in 2021 I paid him 10 Lakh. Then in Aug 2022, he and his father said that they need around 10 lakh loan amount only for 2 months, so they can show balance to bank to secure big loan for their new project. I was foolish and stupid to give them money. I May-June 2023 they said because of financial crunch they will not be able to give me interest of 2% so my total outstanding of around 33 lakhs by then should not be charged for interest. Till date they have not returned me any money except for 50-60 thousand. In terms of proofs, I have :
1. Loan agreement of both the loans- 5 lakh(Feb 2021, with 2 cheques of 2.5 lakh each with no date) and 10 lakh(2 cheque of 5 lakh but date given of Oct 2022),
2. Online/Cheque payments of above loans
3. Outside agreement, money given to him through online mode is Around 5 lakh
3. Voice call recording.
4. WhatsApp video recordings from 2024 where I am asking for return of my money of 33 lakh and they are giving excuses.
They are just giving excuses now. I have asked them for a new loan agreement of Rs 33 lakh now with dates of money returning mentioned in same and some security(most likely a floor of their factory in Delhi).
If they agree to new secured loan agreement what all should I mention in same so that this time my documentary proofs are 100% solid with no gaps and if I take court route then it should not take much time?
When a person issues a blank cheque without specifying a date or amount, the recipient can fill in the details and present it for encashment. If the cheque bounces, the holder can file a criminal suit under section 138 of the Negotiable Instruments Act within three months from the presentation date. The Supreme Court ruled in the Sripati Singh v. State of Jharkhand case that a cheque issued as security in a financial transaction can be presented for payment if the agreed repayment terms are not met. A legal notice must be sent to the drawer within 30 days of dishonor, giving them a chance to repay. If payment isn't made within 15 days after notice, a cause of action arises. For cheques with expired dates, evidence can be presented in court to demonstrate the drawer's intent and support the claim.
When a person issues a blank cheque against a promise or against any refund of money refundable by her or him and in the absence of any agreement, the cheque receiver holding the said cheque is free to present the same for encashment on any date by putting a date and amount on the cheque and if the cheque is dishonored or bounced for any reason, then holder of the Cheque can file a criminal suit against the drawer of the cheque under section 138 N I Act, 1938 within three months from the date on which it was presented in the bank. A blank cheque leaf, voluntarily signed and handed over by the Drawer of the cheque, which is towards some payment, would attract presumption under Section 139 of the N.I. Act and on dishonor of the cheque, the cheque's drawer will be held accused under Sec. 138 of N I Act, 1938. The Supreme Court in the case of Sripati Singh v. State of Jharkhand, 2021 SCC OnLine SC 1002, decided on 28.10.2021, held that a cheque issued as security under a financial transaction cannot be considered a worthless piece of paper under every circumstance and that there cannot be a hard and fast rule that a cheque which is issued as security can never be presented by the drawee of the cheque. If in a financial transaction, an amount is advanced and the receiver of the amount agrees to repay the amount in a specified timeframe and issues a cheque as security to secure such repayment; if the said amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of the amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the cheque is dishonored, the consequences contemplated under Section 138 and the other provisions of the N.I. Act, 1938 would flow. A legal notice has to be served on the drawer of the cheque within 30 days of the instance of dishonor. The purpose is to give the drawer of the cheque a proper notice regarding the dishonor of the cheque irrespective of the reason behind the dishonor of the cheque and a chance to repay. Cause of action arises when notice is served on the drawer and the drawer fails to make payment of the amount of the cheque within 15 days. As regards your 2 cheques of 5 lacks where the date given as Oct 2022 had lost its validity on expiry of 3 months but the documents may be adduced before the Court to prove the ulterior motives of the cheque drawer and substantiate your claim.
So, you need to consult with an Advocate experienced in cheque bounce cases for guidance and steps.
As cheques are undated you can file cheque bounce case which is financially feasibly and you need not pay any court fees.
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