March 25

Cheque bounce and the Law …..

The cheque issued to me has bounced, what do I do?

This is the most comman legal problem we all face and we all get in a case of panic and helplessness when we get intimation from the bank that the cheque which was deposited by us has bounced. Before going to the legal remedy and the law, let us understand what cheque bouncing is :

“The cheque bounce in normal terms means the returning of cheque by the bank to which it is deposisted due to either lack of fund in the persons account from which the amount had to be paid or the cheque amounts exceeds the amount which the contract between the customer and bank allows.”

Now the question arises, what the person should do..

1) Within 30 days from the issue of intimation by the bank issue a notice to the person who issued the cheque to make the payment of the amount.

2) If the person fails to make the payment within 15 days from the receipt of such notice file a complaint under 138 of negotiable instruments act within 30 days.

3) Consult a lawyer to file a complaint

The relief which the person can get is either twice the amount of the cheque money or imprisonment of the person for 2 years who issued the cheque

The author is a lawyer practicing in the Delhi High Court and other courts of Delhi and can be contacted at lawyer.soniasaini@gmail.com or 9873658554

Posted by Sonia Saini | no comments

February 27

HOW TO FILE A CONSUMER COMPLAINT?

I have divided the procedure in various stages for sake of brevity .

Stage 0: Decide To File

The most common emotions when you have been duped, ignored, insulted or cheated by a company from whom you bought a product is that of helplessness, anger or revenge. You may also hear yourself threatening the company about going to consumer court.

Stage 1: Collect Necessary Documentation

Before a consumer complaint can be filed against a company, you need to ensure that you have all the supporting documentation that you need. These may include the following documents related to the purchase of the product from the company:

· An invoice or bill for the purchase (Preferably with an invoice number and Tax ID of the company)

· Warranty card for products and SLA for services (This is optional)

· Proof of payment such as copy of the cheque or credit card statement (This is optional)

· Any other communication or record from the company that can show negligence, insensitivity or lack of attention from the company (Telephone call logs made to the company with long wait times, letters from company expressing uncaring attitude etc.)

· The registered address of the company. You should be able to find this either in the above documentation, website of the company or from third party sources such as directories.

Stage 2: Send a Notice to the Company

In this step, you will be required to “officially” notify the company of your grievance. Be detailed about what it is that you are complaining about and what you expect the company to do. Be fair in your demands to the company. For example, if a product you purchased for Rs.10000/- is broken due to no fault of yours, ask to either replace the product or refund Rs.10000/- + a small additional sum for any inconveniences caused; do not place unreasonable demands for Rs.50000/- or so :. You are also entitled to ask for interest on any amount paid, if you think you are eligible for it.

Also, when it comes to making demands, be sure to give the company more than one option. For example, company policy might prevent them from giving you a full refund, but they may be open to giving you a replacement product that is superior to the one you purchased. In other words, the more options you give the company, the better your chances are to get your grievance addressed without going to court. When you think of the hassles of going to court, being flexible here will ultimately help you out a lot!

Your notice can be printed in English on a regular A4 size page, signed by you and sent by post to the registered address of the company. Be sure to use either registered post with acknowledgement due or speed post with tracking feature. This is important as you will need legal proof that the company has received your notice.

In your notice, you will need to also give the company some time to redress your grievance. This time should be specified as after the receipt of the notice. Again, be fair when providing time to the company. Anywhere between 15 to 45 days should be adequate depending on the gravity of the matter.

You should also be sure to mention, in a non-threatening manner, your intention to pursue the matter legally should the company fail to address your problem in the given time. The statement could be merely something like this; “You are hereby given fifteen (15) days from the receipt of this letter, to grant and process this demand, failing which, I will be forced to pursue other legal measures including filing a petition with the State Consumer Disputes Redressal Commission (or other competent court or forum with jurisdiction) on this matter”

Important points to take care of in the notice include the following:

· Providing clarity to the company on the nature of your grievance

· Providing clarity to the company on how you expect the company to solve your complaint

· Providing the time frame in which you expect the company to rectify your grievance

· Providing a polite and stern notification that you intent to pursue the matter legally

With luck on your side, the company will respond to your notice with willingness to resolve the issue. I wish that all the consumer complaints in this country get solved in this manner, but then the chances are that you will have to read on to the next step.

Stage 3: Get Legal Representation

The biggest advantage or hiring a lawyer is that you do not have to read the remaining of this boring article. The advocate will know what to do from here on.

The biggest disadvantage of hiring a lawyer is that good ones don’t come free.

Put simply, if your case is complicated, you have less time to spare and the compensation you seek is large, hire one.

Stage 4: Prepare Your Complaint

As you prepare your complaint, here are a few questions that may come to your mind.

1. How much time do I have?

According to the Indian Consumer Protection Act of 1986, clause 24A(i) a consumer court shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen’.

2. What format should I use to prepare a complaint?

It is too much legal jargon to explain the nitty gritty details of preparing a complaint to file in the court. So i will just point you to a few good web pages that have this information already provided. You will need to prepare a complaint and an affidavit as per these suggestions. You need not file the complaint in a stamp paper. It can be filed in a regular legal size sheet or as suggested by your advocate.

o ICRPC

3. Which court should I file the complaint in?

Depending on convenience, you can file the complaint in the area you purchased the product from or the area the company did the action to grievance you or any area where the company does business in. Depending on the amount of compensation you claim, you must file the complaint at appropriate courts. If the total amount (of cost and compensation) in your complaint is below Rs. 20 Lakhs, you must file the complaint with the District Consumer Disputes Redressal Forum. If it is between Rs. 20 Lakhs and Rs. 1 Crore, then you must file the complaint with the State Consumer Disputes Redressal Commission. If it is more than Rs. 1 Crore, then you must file with the National Consumer Disputes Redressal Commission.

4. How to find the address of the court?

The National Consumer Disputes Redressal Commission’s (NCDRC) address can be found at its website.

Vakilno1

Here are a few web pages that give the address of the district forums.

o Consumer Help India

Stage 5: File your Complaint

There are several actions involved in this step as listed below:

1. Along with your complaint and the affidavit, attach a list of documents you are submitting as part of the complaint file. You will need to attach copies of the evidentiary documents. Ensure that you attach only photocopies of the evidentiary documents and not the original. You may also need to sign and attach a Vakalatnama, which is similar to a power of attorney authorizing your lawyer to represent you in court on this case, should you decide to hire a lawyer.

2. You will need to approach a Notary and get your complaint file and the affidavit notarized. The Notary who, unless known to you, will require you to show a proof of identification such as your driver’s license, PAN card, passport, ration card or election ID. You will then need to the sign the complaint and the affidavit in front of the Notary after which he/she will notarize the document with his/her Notary seal and signature. Notarization is a process by which the consumer court can ascertain that you are the person you claim you are and that you have actually signed the complaint.

3. You will then be required to make a specific number of copies of the complaint. In most cases, you will need to make a total of five copies including three for the court, one for the court to send to the company and one for yourself. I recommend that you visit the court in which you intent to file the complaint and find out exactly how many copies are needed.

4. The next action is preparing the court fee payment. Most courts accept Demand Drafts (DD) through a Nationalized Bank duly crossed, drawn in favor of the person as shown in the table as the mode of payment. The recent fee structure is also shown in the following table. I highly recommend that you visit the court to validate these amounts and to verify the mode of payment.

Amount of Compensation Sought	Court Fee to be Paid	Court with Jurisdiction	Demand Draft drawn in the Favor of
Up to Rs. 1 Lakh	Rs. 100/-	District Consumer Disputes Redressal Forum	President, Consumer Disputes Redressal Forum, (District Name)
Rs. 1 Lakh to Rs. 5 Lakhs	Rs. 200/-	District Consumer Disputes Redressal Forum	President, Consumer Disputes Redressal Forum, (District Name)
Rs. 5 Lakhs to Rs. 10 Lakhs	Rs. 400/-	District Consumer Disputes Redressal Forum	President, Consumer Disputes Redressal Forum, (District Name)
Rs. 10 Lakhs to Rs. 20 Lakhs	Rs. 500/-	District Consumer Disputes Redressal Forum	President, Consumer Disputes Redressal Forum, (District Name)
Rs. 20 Lakhs to Rs. 50 Lakhs	Rs. 2000/-	State Consumer Disputes Redressal Commission	Registrar, State Consumer Disputes Redressal Commission, (State Name)
Rs. 50 Lakhs to Rs. 1 Crore	Rs. 4000/-	State Consumer Disputes Redressal Commission	Registrar, State Consumer Disputes Redressal Commission, (State Name)
Above Rs. 1 Crore	Rs. 5000/-	National Consumer Disputes Redressal Commission	Registrar, National Consumer Disputes Redressal Commission

5. The last and the most tedious action in this step is to go to the court, locate the receiving clerk, deposit your complaint file and make the court fee payment. Be sure to obtain a receipt of the payment. At this time, the clerk will also give the date a judge will first hear your case (admission hearing) and a complaint reference number.

6. The court will then send the complaint to the company and ask them to respond to the claim and hear the claim and decide.

Good luck!!

The author is a lawyer practicing in the Delhi High Court and other courts of Delhi and can be contacted at lawyer.soniasaini@gmail.comor 9873658554

Posted by Sonia Saini | no comments

February 22

Domestic Violence….Say no to it ….Know your Rights

The purpose of writing this article is to make females aware about their right to protection and to seek a remedy in case of Domestic violence in form of protection orders, residence orders, monetary compensation, custody orders and other relief which the court considers appropriate. The whole issue of domestic violence has been categorized into different topics by me for the sake of brevity.

1. What is Domestic Violence?

Physical abuse consisting of harming the limb or causing injury of any form is domestic violence
threating the female with the view of extorting money, valuable or for an illegal demand for dowry is domestic violence
calling the female by different names such as one who cannot produce kids etc or by ridiculing her is domestic violence
Alienating the property of a female or depriving her of right to property or her stridhan is domestic violence
Abusing the female verbally also constitutes domestic violence

2. Against whom can orders be passed in the case of complaint of domestic violence?

Husband
His family
Live-in partners
Anybody in a domestic relationship with aggrieved person, domestic relationship is relationship of cosagnnuity, adoption, marriage, relationship in nature of marriage, relatives

3. What are the orders that can be passed?

Protection order : protecting the aggrieved person from any physical abuse
Residence order: preventing the aggrieved person from being disposed and securing her a place to live in the household
Monetary orders: compensating her for the loss that has occurred to her due to domestic violence
Custody orders: giving the custody of the child in case of complaint considering the welfare of child
Other orders: In case of any other injury or damage

4. What if the orders are not followed?

The person can be imprisoned for one year for pay a fine of 25 thousand rupees.

5. Whom to approach in case of domestic violence?

Police, he would guide you to protection officer

Posted by Sonia Saini | no comments

February 21

Right of a female Hindu in undivided Hindu Family Property, scenario after 2005.

I would be the covering the main issue and the connected issue concerning the right of a female Hindu, after the amendment of 2005. Prior to the amendment of 2005 the female Hindu was not entitled to have a part in the ancestral property and was not a member of coparcenary. From July 2005 the new Act has come into force and the daughter is allotted the same share as is allotted to a son. The daughter shall have a right to claim partition in the joint family properties as well as the right to claim right of partition in the dwelling house of the joint family and she shall also have a right to claim partition during the lifetime of her father.

The provision: Section 6 of Hindu Sucession ACT,1956

6. Devolution of interest in coparcenary property. —(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005*, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,—

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005*, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,—

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

Explanation. —For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005*, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:

Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005*, nothing contained in this sub-section shall affect—

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

Explanation. —For the purposes of clause (a), the expression “son”, “grandson” or “great-grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005*.

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.

Explanation. —For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.]

Comman Issues:

(1) What is the right of the daughter of a co-parcener in a Joint Hindu Family governed by Mitakshara Law in co-parcenary property by virtue of the amendment?

The daughter of a co-parcener will have all rights with respect to the property which a male co-parcenar had before the amendment, the rights here include the right to be a member of coparcenary with all rights and liabilities attached in “her own right”. In comman parlance the consequence of the amendment is that even a daughter can get a share in partition.

(2) Whether a married daughter can inherit the property in respect of which partition has not yet taken place?

Yes a married daughter would also get a share on partition if the partition of the Hindu Family property has not already taken place.

(3) Whether Section 6 is not applicable to partitions already affected?

No, the section will not invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004

Law students and lawyers may refer to Pushpalatha N.V. W/o Nemraj Vs. V. Padma Widow of Vasantha Kumar D.N., Asha N.V. W/o Shantharaj, N.V. Tejkumar and N.V. Bahubali (Appi) ;AIR2010Kant124, 2010(2)KCCR1249 for a detailed analysis of the amendment.

The author is a pracisting lawyer in Delhi High court. She can be contacted at lawyer.soniasaini@gmail.com

Posted by Sonia Saini | no comments

NEWER OLDER 1 2 … 37 38 39