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Trademark Cease and Desist Notice
  • By: admin
  • Date: 19 Mar 2020
  • Documentation
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A Trademark is referred to as a brand or logo. A trademark is defined as a distinctive sign that identifies certain goods/services as those produced/provided by a specific person/enterprise. A trademark consists of the drawings, symbols, three-dimensional colours and also combination of colours. A trademark can be in the form of words, letters and numerals or the combination of the all the three. A trademark is used by the companies or traders or any firms to distinguish their goods or services from the other companies or traders or firm (who are competitors). It is often observed that the trademark is used by the consumer to make his choice while buying any goods or availing services as there are some expectations with the quality of that particular trademark. Any person who claims to be the owner of a trademark has a right to apply for the registration of its marks. The registration of a trademark shall be for ten years. The registration can be renewed after paying renewal fees. Hence, the trademark prevents other traders from deceiving the consumer.

Cease and Desist Notice

A cease and desist notice is issued in an infringement case. Infringement is defined as the unauthorized use of a trademark. The unauthorized use of a trademark leads to confusion, deception or misunderstanding about the goods or services of the actual company. Infringer means someone who has violated the rights of an individual or an organization. The cease and desist notice must be sent through a registered post to the infringer(trader or company or firm or an individual) who has been committing an act of infringing the rights of the trademark holder. The cease and desist notice acts as a formal request to the infringer (receiver of such notice) to stop and not continue with the act of infringing the rights of the trademark holder (sender of such notice).

The cease and desist notice consists of a detailed description regarding the adverse effects faced by him due to trademark infringement and a timeline within which the receiver must stop or discontinue to use his trademark, etc. A cease and desist notice must also include the warning that if the infringer does not stop or discontinue his act of infringing the rights of the trademark holder, then it will result into the initiation of the legal proceedings against the infringer.

Effects of the Cease and Desist Notice

The effects of sending a cease and desist notice to the party who infringes the right of the trademark owners are as follows:

  • The cease and desist notice establishes the rights of the trademark owners in his trademark.
  • The cease and desist notice is served to the infringer to protect the rights of the trademark owners in future against the same infringer.
  • The notice is served to the infringer with reference to the prevailing law that protects the trademark holder’s right.
  • A bona fide attempt is established by the trademark owner to reach an amicable resolution by sending a cease and desist notice.
  • The notice makes the infringer aware of the law that protects its trademark and also it enables to stop the usage of the trademark by the other party.
  • The cease and desist notice sets as a precedent of the trademark holder who is enforcing his rights.
  • The cease and desist notice states that the non-compliance of the request of the trademark owner will result in a stricter course of legal action and it may involve a legal proceeding.

Case Law

Pest Control (India) Private Limited Vs Pest Control Innovative Private limited

CS (COMM) 258/2016

Delhi High Court- 2nd May 2017

The Pest Control (India) Private Limited had registered its trademark ‘PCI’ in the year 1984under Class 5. ‘PCI’ was not only the Trade name but also the Trademark, House Mark, Service Mark and Trading style since its formation. ‘PCI’ has also been duly registered as a Copyright because it qualifies as an original artistic work of the Pest Control (India) Private Limited. It is also considered as a well-known mark within the Trade Marks Act 1999.

In June 2013, it came to the knowledge of the Pest Control (India) Private limited that the Pest Control Innovative Private limited is using and providing services with an identical and deceptively similar trademark. On 5th June 2013, a cease and desist notice was sent by the Pest Control (India) Private Limited to the Pest Control Innovative Private limited. On 27th August 2013, a reply to the cease and desist notice was filed by the Pest Control Innovative Private limited denying the infringement activities.

The Pest Control (India) Private limited filed a case against the Pest Control Innovative Private limited for relief of permanent injunction, restraining the infringement of trademark, copyright, passing off, delivery up of goods, rendition of accounts of profits and damages of Rs.20,01,000/-. On 18th February 2014, an ex-parte ad-interim injunction was granted in favour of the Pest Control (India) Private limited against the Pest Control Innovative Private limited restraining them from using the Pest Control (India) Private limited’s registered trademark ‘PCI’ or any other deceptively similar trademark for its products. The Pest Control (India) Private limited proved that the Pest Control Innovative Private limited had copied their trademark and Copyright.

The Court granted a permanent injunction in favour of the Pest Control (India) Private Limited. The Pest Control Innovative Private limited was also directed to destroy all their goods and any other infringing material bearing the ‘PCI’ trademark or any other deceptively similar trademark. The Court awarded a sum of Rs. 15,00,000/- to the Pest Control (India) Private limited as damages. Hence, it was held that the use of an infringing trademark by the Pest Control Innovative Private limited had caused injury, loss and damage to the name, business goodwill and reputation of the Pest Control (India) Private Limited.

Conclusion

The cease and desist notice is considered to be one of the effective ways in which the matter can be settled amicably. Hence, before initiating any legal action, a cease and desist letter is issued so that the party does not continue to use the infringed trademark. If the infringer does not stop or discontinue to use the trademark of the owner, then the trademark owner initiates the legal proceedings against the infringer.If the trademark owners are of the opinion that their trademark has been infringed by any other person, then they can take legal action. If it is proved that the trademark has been infringed, then the Court can prevent the other party from using such trademark and can award monetary relief to the trademark owner. Hence, the cease and desist notice helps in preventing the infringer from continuing to violate the trademark of the trademark owner.

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IT Department Notice

By: admin Documentation 19 Mar 2020

Income tax department notice is an intimation from the Income Tax department to an individual taxpayer. These notices arise when an individual/assessee, also known as the taxpayer files their income tax return and which is checked by the Income Tax Department. If there is any mistake/discrepancy/error is noticed by the department, then the taxpayer is sent a warning in the form of a notice.

 

Reasons for issuance of notice

  • When income tax returns are not filed for an assessment year.
  • A mismatch in TDS figures between the income tax returns filed by the taxpayer and what is available on the form 26AS records of the income tax department.
  • Any mistakes or errors in the income tax returns filed by the taxpayer.
  • If there is any financial transaction which is known by the income tax department, but the same is not reflected in the records of the filed documents.
  • Sometimes essential details and documents of an individual are missing, in such circumstances; notices are issued asking the individual to submit the same.
  • To carry out the scrutiny process under section 143(1) of the Income-tax Act.

 

Income Tax Department Notices

It is crucial to understand the types of Income Tax notices in order to file your reply as one cannot entirely depend upon a Tax consultant. Given below is a list of notices submitted under the Income Tax Department.

  • Notice under section 131(1A) of the Income Tax 1961

Section 131(1A) of the Income Tax 1961 states the provision relating to the Income that is concealed or likely to be concealed. The notice is sent by the Income Tax Department when the Assessing Officer believes that an individual is hiding his income or is likely to hide his income. The notice is an intimation that the Assessing Officer initiates an investigation/enquiry. After giving reasons, the Assessing Officer can impound the books of accounts or any other documents.

  • Notice under section 139(9) of the Income Tax 1961

Section 139(9) of the Income Tax 1961, lays down the provision relating to the Defective Income Tax Return. In the case of the Defective Income Tax Return, the Assessing Officer sends a notice to an individual/taxpayer, if the Income-tax return filed by the taxpayer is defective. Instances of defect mentioned under Section 139(9) are incomplete return filed, wrong Income Tax Return filed, and information is missing in the Income Tax Return, etc. A period of 15 days is given to the assessee to reply to the notice. If no reply has been filed in the prescribed time, then the return will be rejected by the Assessing Officer.

  • Notice under section 142(1) of the Income Tax 1961

The Assessing Officer issues a notice under section 142(1) if there is any delay in filing Income Tax Return. If the return is not filed on time, then an individual will get a notice of preliminary enquiry under section 142(1) of the Income Tax Act 1961. The Assessing Officer can also ask an individual to furnish the documents for the assessment purpose. There is a time limit for serving a notice mentioned under section 142(1). The notice must be served before the end of the relevant assessment year. However, there is no timeline if an individual does not file the return. To avoid such notices, one must file Income Tax Return before the deadline.

  • Notice under section 143(1) of the Income Tax 1961

The Assessing Officer issues a notice under section 143(1) if the TDS claimed is not matching with Form 26AS(Accounting Standard). To avoid such type of notice, one must check the TDS reported under Form 26AS and then proceed to file Income Tax Return. Hence, the TDS claimed under Form 26AS should match with the Income Tax Return.

  • Notice under section 143(2) of the Income Tax 1961

If an individual fails to provide the documents that have been asked by the Assessing Officer under section 142(1) or if the Assessing Officer is not satisfied with the reply under section 142(1) then a notice can be issued under section 143(2) of the Income-tax Act 1961. Such a notice is issued for detailed scrutiny of the income generated through the investments made in the name of the spouse. Failure to declare the investments that are made in the name of the spouse would be considered as tax evasion. Sometimes, the Income Tax Department also issues such notices to scrutinize the Income Tax Returns to enforce tax compliance randomly. If the taxpayer has done high-value transactions, the department can send a notification to seek information relating to the source of funds. A satisfactory reply must be filed by stating the valid reasons and mentioning the source of income.

  • Notice under section 148 of the Income Tax Act 1961

Even after the assessment, if the Assessing Officer believes that some of the income of an individual/taxpayer has been escaped from assessment, then a notice can be issued under section 148 of the Income Tax Act 1961. The Income Tax Department has the power to reassess previously filed Income Tax Returns in case if the Assessing Officer has a reason to believe that there was a tax evasion in the earlier years.

  • Notice under section 156 of the Income Tax Act 1961

The Income Tax notice is served under section 156, if there is any penalty, fine, tax, or any other amount that is due from an individual/taxpayer to the Income Tax department. It is usually served after the assessment of the Income Tax Return. There is no time limit for serving such a notice. The taxpayer must deposit the amount payable within 30 days from the date of such notice. 

  • Notice under section 245of the Income Tax Act 1961

The notice under section 245 is issued by the Assessing Officer when the tax refund for the assessment year is adjusted against the tax demand due from an individual/taxpayer. The year of tax demand and the assessment year of refund can be different. Hence, the notice is issued for setting off tax refunds against tax payable. The refunds are adjusted within 30 days from the date of the notice.

  • Misreporting Long Term Capital Gains from Equity

The notice will be issued, if an individual/taxpayer has misreported the Long Term Capital Gains from Equity. To avoid such notices, one must ensure that he has mentioned correct information and has done the right computation of Long Term Capital Gains.

 

Conclusion

One should never ignore a notice from the Income Tax Department. The reply must be filed within a stipulated period. In the case of scrutiny, one must provide with all the relevant documents and information on time to the Income Tax Department to verify the same. The fines imposed on a person who does not reply to the Income Tax notices are very high. Hence, it is essential for a taxpayer to know the reasons behind getting an Income Tax Department notice and to file the reply of the same notice in a prescribed period. Furthermore, it is always advisable to consult a professional before framing a reply notice to reduce the chances of legal consequences in the future.

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Eviction of a Tenant

By: admin Documentation 19 Mar 2020

The landlord takes a massive risk by lending his property to a tenant who is a complete stranger and therefore for securing the tenant as well as the owner a rent agreement is signed by the landlord and the tenant. The Rent Agreement consists of the details that are related to the rented property, monthly amount of the rent, parties that are involved and the rent period. The landlord enjoys the right of charging the rent at not only the market price, but the owner can also increase the rent after a certain period. The landlord enjoys the right to a temporary recovery of the rented property’s possession for repairs, alteration or addition to such property. The landlord should include the courses of action in the rent agreement in case if the tenant does not pay his monthly rent on time.

The landlord must conduct police verification of the tenant before renting the property. It is also advisable to the landlords that they must discuss the information that is related to the rented property with the tenant (Information such as Advance amount, the date on which rent becomes due, etc.). The Rent Agreement must consist of the rights and duties of both the landlord and the tenant. The Rent Agreements, which exceeds 11 months, should be registered compulsorily under section 17 of the Indian Registration Act. However, in certain states, all Rent Agreements are to be registered compulsorily with the State registry after paying proper registration fees and stamp duty.

Tenant Eviction Notice

It is tremendous stress for a landlord to evict his tenant, in case if he is not paying the rent on time or not vacating the property of the landlord. In India, tenancy laws are tougher for the landlords, and therefore in such circumstances, the first legal action an owner can take against the tenant is by sending him/her a legal tenant eviction notice. This legal notice will contain details like the reason for eviction, notice period given for the eviction and all the other relevant details. The reasons for eviction, they have to be valid in the eyes of the law.

Following are the valid grounds based on which a tenant can be evicted by the landlord:

  • If the tenant has used the rented property for an unlawful purpose.
  • If the tenant has not paid the rent amount within the prescribed period mentioned under the Rent Agreement and more than 15 days have been elapsed.
  • When tenant’s actions had resulted in loss/damage to the rented property or its utility.
  • If the tenant has sublet the rented property to any other person without taking the approval of the landlord.
  • In cases where the landlord has received a complaint against the tenant by the neighbourhood or the society.
  • If the landlord requires his property for his occupation or his relatives or any repairs and renovation.
  • When the tenant has used the rented property for any other purposes, which is not mentioned in the Rent Agreement.
  • In situations, where the lease period has been expired or the landlord had terminated the lease period with proper notice to the tenant.

Procedure for Tenant Eviction

Following is the procedure that is needed to be followed by the landlord to evict the tenant from his property:

  • The first step is to send a notice of tenant eviction. The landlord must send a legal eviction notice to the tenant. By sending this notice, the landlord ensures that the tenant is properly informed about the consequences of such notice. It is entirely depended upon the tenant that whether he wants to reply the notice or not. The eviction notice must include the information relating to the Rent Agreement, the reason behind sending such notice, the time which is provided to the tenant to evict the rented property and what will be the consequences if the tenant does not vacate the rented property within the prescribed time as specified in the notice, etc. In a case where his property was being used for an illegal or unlawful purpose, there is no need for an Eviction notice, and the landlord can directly file a criminal complaint.
  • After the notice, if the tenant does not vacate the landlord’s property, then the landlord must file a case against the tenant under the proper jurisdiction of the Small Causes Court. The Court shall conduct the proceedings as a Civil Suit. After hearing the landlord and the tenant, the Court may pass an order of eviction. It is mandatory for the tenant to vacate the landlord’s property, once the order of eviction is passed by the Court.

Conclusion

Eviction of a tenant is a legal process. It is a process through which a landlord can regain possession of his rented property. Many a time, it is observed that the landlord intimidates or coerce the tenant to force him to leave the rented property. It is considered as one of the illegal ways that have been adopted by the landlord for evicting his tenant. There is a requirement of giving proper notice to the tenant, before filing for an eviction. A landlord may face difficulty in evicting the tenant if he has not given the eviction notice to the tenant. Moreover, when a notice is filed, it is essential that it is formulated in such a way that it completes the legal requirement of the notices, as well as the work of eviction, is done. Therefore, it is advisable to hire a professional before drafting a legal notice.

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Consumer Complaint Legal Notice

By: admin Documentation 19 Mar 2020

In order to promote consumer’s safety, the government of India had come up with a law known as the Consumer Protection Act 2019, which replaced the 1986 Act. The consumer is defined as any person who buys goods or hires/avails any services for some consideration. It includes any user of such goods or beneficiary of such services other than the owner of such goods or services but has taken the approval of the owner. However, it does not include the person who has obtained such goods for the purpose of resale/commercial purpose or has availed the services for any commercial purpose. The consumer has a right to file a complaint against the seller or service provider if there is any defect in goods or deficiency in services.  The consumer can serve a legal notice to the seller or service provider and ask him to rectify his mistakes within an appropriate period of time. Sending a legal notice is non-complicated and less time consuming, and hence, it is advisable to send a notice before filing a complaint in the Consumer Court.

 

Consumer Notice

A consumer notice is sent by the consumer to the seller or service provider of the goods or services in case if there is any defect in goods or deficiency in services that have been provided by them. The consumer must send this notice by registered post. The consumer notice must include the information relating to the name, description and address of the seller or service provider, detailed description of the defective goods, deficiency in service and non-providing of services. The notice must specify the date of the issue and the detailed facts and grievances. The notice must specify the legal course of action that the consumer might take in future if there is non-compliance of such notice. In case if there is any previous communication made relating to the same grievances, then that information should be mentioned in the notice. The consumer notice must give an appropriate time period to the seller or the service provider to settle the matter and remove the defects in goods. The notice must also specify the effects of seller’s irresponsibility in providing quality goods or services.

The consumer should also register the complaint if the service provider has any website for registering the complaint or a redressal portal. Non-compliance of consumer notice results into a legal proceeding against the unfair trade practices and deficiency in services of the seller or service provider. Hence, the consumer notice is considered as a last and final communication of the consumer complaint before initiating the legal proceedings in the Consumer Court. If the seller or the service provider does not comply with the notice, then the complaint must be filed by the consumer within two years from the cause of action, and if there is any delay in filing the complaint, then the reason of delay must be stated in the complaint.

 

Reasons for sending a Consumer Notice

The reasons for sending a consumer notice are as follows:

  • If the goods or services of the seller or service provider are unable to fulfil the responsibility of supplying or providing quality goods or services.
  • Non-satisfaction of the consumer is also an element. If the consumer is not satisfied with the goods or services that have been provided by the seller or service provider.
  • In the situation, where the consumer is deprived of the quality of goods or services provided by the seller or the service provider.
  • In case the consumer has not received the goods or services concerning his monetary value.

 

Conclusion

A consumer notice is considered as a piece of good evidence for showing that the consumer has taken a primary step before filing a consumer complaint. It also gives an opportunity to the seller or the service provider to rectify the mistakes or error made by them. It is not mandatory to issue consumer notice before filing a complaint in Consumer Court; however, it is always advisable to first issue a legal notice. Hence, in case if the company takes action on the consumer notice, then the issue is resolved without initiating legal proceedings. It saves time, money and energy for filing a complaint in Consumer Court.

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Debt Recovery Notice

By: admin Documentation 16 Mar 2020

India is currently facing an economic slowdown. Businesses are facing a significant cash crunch in the market. From demonetization to situations like the spread of Coronavirus to the mishap of Yes bank has made the current scenario worse. India is facing a period of recession where a country faces economic decline and is generally accompanied by a steep drop in the stock market and an increase in unemployment.

Due to such circumstances, the creditors, debtors, businessman, and professionals are dealing with inadequate cash flow in the market. In such a scenario, lending someone money becomes a huge deal. Moreover, after the money is lent, recovery of the same becomes an inevitable issue. The one who has lent money should make sure that the money is recovered from the latter only through legal means. Therefore due to the current happenings, it is crucial to understand the ways through which a person can legally recover his debt. One of the easiest and most appropriate means is to send legal notice to recover the debts.

Debt Recovery Legal Notice

A debt recovery legal notice is intimation between two people, one warning the other, before a legal action is initiated to clear their dues clear. A legal notice can also be sent to a friend, in case, if he/she owes you money. A legal notice will help you to recover the money from a debtor by not getting involved in litigation. Notices are a secure and faster mode to recover money. However, it is essential that before drafting a notice, all its elements are understood by an individual.

Essentials of a Legal Notice

  • Legal name, description, address of the sender of the notice.
  • Monetary relief which is to be claimed by the party.
  • Details of the cause of action.
  • Other legal formalities.

Need for a Debt Recovery Notice

There are various relationships in which a need for debt recovery notice may arise:

  1. Notice to an Employee
  • Sending a notice to an employee arises in cases where an employee absconds with the money of the company. Under such circumstance, a domestic enquiry is initiated, and a show-cause notice is then sent to the employee’s residential address.
  • If the employee does not reply even after sending 2-3 such notices, then disciplinary action may be taken against the employee according to the Service Regulations or Standing orders of the organization.
  • This will give a chance to the employee to defend himself/herself against the charges.
  • Once it is cleared that the employee is no more a part of the company, a legal notice can then be sent to the employee for the recovery of the money.
  1. Notice sent under a Loan

The Indian economy is going through a cash crunch, mainly because of the defaulters of the loan. The government has created measures to recover the money circulated through debt. The SARFAESI Act was introduced with the sole purpose to recover the debt through a separate judicial body. The debt recovery tribunal formed in every state to resolve debt-related issues begins by sending a legal notice to the defaulter for recovering the amount. Sending a legal notice always helps, as it gives the receiver an appropriate amount of time to reply and settle the amount.

  1. Notice from an Employer to the Company

An employer who is deprived of a legitimate salary by a company can send a legal notice. He/she can also take action under different laws which are made for the protection of the employees. When an employer sends a legal notice, he/she should take care of all the legalities and should also mention the appropriate reason for such an action.

  1. Recovery of money from Dealers

Post-dated cheques which are kept as security deposits are sometimes bounced due to the non-availability of funds. Under such a situation, the drawee can send a legal notice for the recovery of money within 30 days from the date of receipt with the return memo from the bank.

Conclusion

Sending a legal notice is helpful in those situations, where an individual does not want to get involved in the court cases. The matters are settled outside the court if a reply is sent to the received notices. Both the sender and the receiver can benefit from such a facility. Legal remedies for the recovery of money are mentioned under Order 37 of The Code of Civil Procedure, 1908. However, the sender is advised to hire a professional to draft a legal notice. A properly draft legal notice helps in the recovery of money in a faster manner.

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Cheque Bounce Notice

By: admin Documentation 16 Mar 2020

A cheque is a bill of exchange which is payable on demand. There are two parties in a transaction, the person who issues the cheque is known as the drawer, whereas the person under whose favour the cheque is issued is known as the drawee. A cheque bounce is a situation in which the cheque cannot be processed because of the insufficient funds that are available in an individual’s bank account. There are many reasons which can lead to a cheque bounce. To overcome such scenarios, the drawee issues a cheque bounce notice or a demand notice to the drawer. The Cheque bounce notice states that if the amount due is not paid within the prescribed time, and then the drawee will initiate legal proceedings under section 138 of the Negotiable Instruments Act 1881against the drawer.

According to section 13 of the Negotiable Instruments Act 1881, a negotiable instrument means a bill of exchange, promissory note, or a cheque. The cheques are governed under the Negotiable Instruments Act 1881. Section 138 of the Negotiable Instrument Act 1881 states the provision relating to the dishonour of cheque for insufficiency of funds in the bank account. If there is any cheque issued by the drawer to the drawee to pay any amount and the cheque is returned/dishonoured by the bank because of the insufficient amount in the bank accounts to honour the cheque. The cheque is also dishonoured if it exceeds the amount that has been arranged to be paid from that bank account (by an agreement made with the bank). Hence, an individual can file a criminal case under section 138 of the Negotiable Instrument Act 1881, and it can also file a Summary suit under Order 37 of the Criminal Procedure Code 1908.

 

Reasons

Following are the reasons behind a cheque bounce:

  • A wrong date mentioned on the cheque: It has been observed that the drawer of the cheque mentions a wrong date in the cheque which results in cheque bounce. Not only the wrong date but if the drawer mentions a date which is more than three months old, then also the cheque is dishonoured by the bank. Moreover, if the cheque is post-dated and the drawee deposits the cheque earlier than the date, it results in cheque bounce. To avoid committing the default of cheque bounce, the drawer must mention the correct date in the cheque.
  • Signature is mismatched: The bank will dishonour the cheque if the drawer’s signature is mismatched. It has been observed that many times people tend to forget their signature and end up signing a wrong signature on the cheque. If the signature does not match with the bank’s record, it results in cheque bounce. To avoid such situations, the signature of the drawer must match his bank record.
  • Insufficient Funds in the drawer’s bank account: The bank dishonours the cheque if there is any shortage/lack of funds in the drawer’s bank account from which the cheque has been issued. In case of insufficient funds in the bank account, the bank will stop the payment. It will also levy a penalty to both drawer and drawee. Insufficient funds are one of the main reasons for cheque bounce cases. To avoid cheque bouncing, the drawer must ensure that there is sufficient balance in his bank account before issuing any cheque.
  • Overwriting on the cheque: A bank has the authority to dishonour the cheque if the drawer has scribbled or has done overwriting on the cheque. The cheque must be kept in good condition. If the bank finds that the cheque is in a bad condition or is damaged and the details mentioned in the cheque are not clearly/properly visible, then it results in cheque bounce.
  • The different amount of mentioned in words and numbers sections: The bank dishonours the cheque if there is an unusual amount mentioned in the words and numbers in the cheque. The amounts specified in words must be the same as the amount mentioned under the numerical representation. This common mistake can lead to a cheque bounce. To avoid the cheque bouncing, one must write the same amount in both the sections (words and numbers).

 

Legal Action

  • The Cheque bounce is considered a serious offence that is committed by the drawer under section 138 of the Negotiable Instrument Act 1881. The first step is to issue a cheque bounce notice. The drawee issues a cheque bounce notice to the drawer within 30 days from the cheque dishonour. The notice must consist of information relating to the nature of the transaction, the amount specified, the date on which the cheque is deposited, the date on which the cheque is dishonoured, the reason behind cheque bounce and to request the payment of the amount (that was dishonoured by the bank) within 15 days from the receipt of such notice. The cheque bounce notice must also include the details of the drawer, and it should specify that the cheque was presented within the validity period; it should also specify that the cheque was not given as a loan or a gift but for discharging the debt. If the drawer makes the payment after receiving the cheque bounce notice, then there is no need to file a case against the drawer. If the legal notice is not taken seriously by the drawer, then it may give rise to legal action.
  • The next step is to file a case if the drawer does not make a payment within the prescribed time. If there is no payment within 15 days by the drawer, then the drawee can file a criminal case within 30 days from the expiry of the cheque bounce notice period (15 days). The case can be filed only in the city where the drawer presented the cheque to the drawee.
  • After hearing the case, the court will issue summons under section 138 of the Negotiable Instrument Act 1881. Once the summons is issued, the drawer will have to appear before the court for resolving the case.
  • If the drawer is found guilty, then the penal provision mentioned under section 138 of the Negotiable Instrument Act 1881will be applied by the Court.

 

Conclusion

In India, the Cheque bounce is considered a severe offence. It is also punishable with imprisonment or a fine mentioned under section 138 of the Negotiable Instruments Act 1881. The term of imprisonment may extend up to two years, and the fine may extend to twice the amount of the cheque drawn or both. In case if the cheque is drawn in favour of a charitable trust or as an application amount of shares, then it is exempted from the cheque bounce notice.

Section 143A of the Negotiable Instruments Act 1881 states the provision relating to the Interim compensation to the drawee for the inconvenience that has been caused due to the cheque dishonour. Hence, cheque bounce is one of the common problems which is still prevalent in India. It is highly advisable to appoint a professional to draft a cheque bounce notice, or legal consequences may be attracted.

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Power of Attorney

By: admin Documentation 12 Feb 2020

A legal document which gives the person (agent) the power to act for another person (the principal) is known as Power of Attorney. The authority of an agent has the limited authority or legal authority to make the decisions for the principal's property, his/her medical care or finances. A power of attorney is generally used in the event of an illness or disability of the principal, or when the principal cannot be present to sign necessary legal documents for financial transactions.

A Power of Attorney (POA) is a crucial document listing the powers that a person wants to share with the POA holder. It is primarily used by Non-Resident Indians to manage or direct their property by authorizing another person known as the agent to act in their absence on their behalf.

The purpose of having a POA simplifies decision making in the absence of the valid owner, thereby minimizing security concerns. Moreover, POA is an essential part of property planning. It is convenient to have the other person to action behalf of the principal in the development of business and transactions. 

A power of attorney deed is a most commonly used document which authorizes the Attorney (power of attorney holder) to acts on behalf of the Principal.  The principal has a right to decide what powers he wants to share with the attorney and the acts which are done by an agent or attorney be considered as done by the principle.

Procedure to Register Power of Attorney

  • Write down the POA terms on a Legal Paper.
  • Visit the Sub- Registrar of your resident jurisdiction.
  • Office of registrar would need two witnesses to sign the POA in front of the registrar (Physical presence is required).
  • Carry all the documentary proof documents like voter ID card, address proof, passport, Aadhar card original along with the photocopy.
  • All photocopies shall be notarized or attested by a gazetted officer (First class government officer).
  • Registrar saves and stores a picture of you, POA holder and the witnesses in the government records.
  • The copy of POA will be kept in government records by the registrar, and one copy will be provided to you with his registry stamp. At this time, your simple POA becomes ‘Registered Power Of Attorney’.

Revocation of Power of Attorney

The principal has a right to terminate the power of attorney whenever he will to do so. The terms and conditions for the revocation of power of attorney are specified in section 201 of the Indian Contract Act, 1872.  It is necessary to mention about the revocation of a Power of Attorney explicitly in the agreement. The principal can mention the date of expiration in order to misuse the powers handed to the Attorney.

In case of the Specific Power of Attorney, it expires after the specific task allotted to the attorney is done.

Conditions for Revocation of Power of Attorney

The following are the conditions for revocation of power of attorney:

  • If the Principal, himself/herself is willing to revoke the POA.
  • When either of the Principal or agent dies (Either the Principal or agent dies. In case of a durable power of attorney, despite the death of the principal, the POA stands.
  • The principal is not of sound mind or becomes bankrupt
  • The business so appointed for is over.
  • Mutual Agreement between the Agent and Principal
  • The Powers bestowed to an agent is renounced by self-will

How to execute a Power of Attorney from Abroad

Legalization: In this case, the signatures of the judge or notary before whom the POA is executed are required to be verified by the duly certified representative of the Indian Embassy. It is not necessary to stamp the POA at the time of execution. However, it should be stamped within three months from the date of receipt of the POA in India. The Stamp duty is payable according to Section 2(17) read with Schedule-I of the Indian Stamp Act, 1899, in his case, when the document is presented for the registration in India.

Apostalisation: The POA executed outside India are proven through the process known as apostalisation, which is governed under the provisions of Hague Convention, 1961.  The process is also known as super legalisation. It is a certificate which verifies and confirms the seal/signature of the person who authenticates the document. It is essential to comply that POA is as per the Indian laws such as the Power of Attorney Act, 1882 and Indian Registration Act, 1908. The stamp duty should be paid.

Payment of Stamp Duty

  • The stamp duty for a POA can be paid as per section 48 of Schedule I of Indian Stamp Act.
  • Non- payment of the Stamp Duty can result in the following outcomes: 
  • The POA cannot be allowed as evidence before any authority that is capable of admitting the evidence.
  • An unstamped POA can be allowed when the penal stamp duty is paid ten times than the value of the original amount.
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Validity of Notices.

By: admin Documentation 30 Dec 2019

The legal notices in totality do not have any validity period. However, in certain tax-related matters, it does hold high weight age in those cases. The validity of notices in income matters plays a very important role, if the taxpayer does not reply to the tax authority in time, then the penalty imposed shall be high and the punishment will be either imprisonment or fine or both in certain serious offence of income tax matters. A notice is filed only for civil related matters under section 80 civil procedure code 1908, and income tax act for few tax matters.

Time period: The taxpayer gets 90 days to reply to the income tax authorities, for stating the reason for not paying the tax on time or other income tax issues.

 

If Notice Remains Undelivered

 

Even after sending multiple notices to the accused party, if they do not respond, then one can initiate the legal proceedings by filing the case against the accused party. A legal notice is not always compulsory, but in cases where money recovery is the subject matter, then it does have a statutory value and may act as evidence in such cases.

However, if a person or an organization sends a notice which is not required or is factually incorrect or illegal or unwarranted, it can be considered as an offence.

There are certain situations where action has to be taken for undelivered notice.The following situations are given below:

  1. Refusing to accept the notice: If a party refuses to collect the undelivered notice even after sending multiple notices then such notice shall be deemed valid, and it shall be said to be a valid notice. Therefore, such a notice cannot be rejected at any cost.
  2. In cases where no knowledge of notice exists: In cases where the notice is not delivered due to no person being present at the residence, or due to some personal reasons or if there is any inconvenience regarding the exact address of the resident where it has to be delivered. Thus, it is always advisable to proceed with the legal proceeding with an n advocate.

 

Is It Mandatory To Send Legal A Notice?

 

As per section 80 of the civil procedure code 1908, it is mandatory to send a legal notice before filing a case if the opposing party is a government sector or a public official. Also, to initiate arbitral proceedings, it is mandatory to send a legal notice.

In Alupro buildings systems Pvt. Ltd vs Ozone overseas pvt.ltd, it has given a clear picture regarding the object and purposes of sending the notice under section 21 of the Arbitration and Conciliation Act and that sending of notices is compulsory. In cases, where notices have not been sent, the legal proceedings cannot be initiated between the parties and thus, creating the limitation for the same.

There is no specific law that states that it is mandatory to send a legal notice to other parties other than the government sector or officials. However, it is considered to be a good practice to send a legal notice in order to avoid long legal battles and to promote quicker outside court settlement.

The notices are also valid, if it is sent via email or WhatsApp or through other social media, and this is guided under the Information and Technology Act 2000.

 

Conclusion

 

Even though one may feel that notice is not mandatory to be sent to the other party, it is always advisable to draft one with the help of an advocate in order to avoid legal hiccups when proceedings take place in the court of law. There are no set of rules and regulations regarding notices and structure of notices, so it is the best time to make an act regarding the same that it will help in the smooth functioning of various courts of law in India. One must, therefore, be careful while drafting a notice, especially which is related to tax and other money recovery matters.

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Response to a Legal Notice

By: admin Documentation 30 Dec 2019

A legal notice is an official document which is used for starting a formal communication between two parties who may have entered into a dispute regarding any particular issue. One of the parties may send the legal notice to another in the view that the other party may read and understand the legal notice which has been sent to them and give a proper response to the same within the time period. There are no set rules and regulations laid down under the Indian law which govern the response to a legal notice.

 

Cases Where Notices Are Sent

 

The following are the most common cases where the notices are sent to the other party. This is not an exhaustive list.

  • Property matters
  • Notice in consumer cases
  • Employer and employee cases
  • Marriage related cases
  • Cases under section 138 of the negotiable instruments act 1881.
  • Cases under section 80 of the civil procedure code

 

How To Respond A Legal Notice

 

Step1: Reading of the notice

First and the most important step after receiving a legal notice is to read the objective of the notice. Then one can refer the terms and conditions of the contract that has been taken into consideration. One may choose to deal with the situation with a mutual settlement or enter into legal proceedings.

Step2: Consult a qualified Advocate

If after reading the notice, one feels that it is not appropriate and not related or there is some ambiguity, then they can approach a qualified Advocate and decide the future procedure of the case.

Step3: Explaining the matter to the advocate

Once the advocate understands the matter, one can draft a counter-notice or may choose to settle.

Step4: Copy of the reply

After responding to the legal notice, one must keep proof of the same which can be used for future reference.

 

Time To Response

 

A party should try and reply to the notice as soon as possible and within the prescribed amount of days as mentioned in the sender’s notice. If it is a tax-related matter, then the response must be given to the income tax authorities within 6 to 7 working days to be on a safer side. However, there is generally no strict action taken against the individual who has not responded within the prescribed time period. Only in the case where the money is involved, certain strict actions can be taken against the individual.

 

Is It Mandatory To Reply To A Legal Notice?

 

It is not always compulsory to give a response to a legal notice under the rules and regulations given under the law. But it is still advisable to reply to the legal notice within the time period which it has to be replied with the help of an experienced advocate in order to avoid the matter from going into litigation.

Ina case where no reply has been sent to an important legal notice, it may become an added advantage to the sender of the notice during the legal proceedings and not replying to a legal notice may create problems in the future.

 

Income Tax Notices

 

It is important that an individual or the firm responds to the income tax notices if they have received one. The income tax notices can be sent to the individual on the following cases:

Section 131 (1A): Notice is issued under this section when the income tax officer wishes to investigate the income of a particular individual so that they can find out the true income of the same individual. The consequence of not responding to the notice or fails to produce the documents is a penalty of Rs. 10,000 or more.

Section 133(6): If the notice is sent to the taxpayer under this section, the income tax officers, need some information relating to a certain transaction during that particular transaction year. If the individual does not respond to the authorities within the prescribed time, fine of Rs.10,000 may be imposed and such other punishments may be levied as decided by the income tax officer.

Section 139(9), Section 143(1), Section 143(2), Section 245 and such other matters which may be related to income tax return must be responded on time to avoid severe consequences which may also result to imprisonment or high amount of fine.

 

Case Law

 

Bihari Chowdary Vs The State of Bihar

The Supreme Court had held that cases filed against public or government officials under the code of civil procedure must be given equal opportunity to prove their claim in cases where a legal notice has been sent to them. To avoid wastage of time and money during litigation matters, it's always better to give an opportunity to the other side.

 

Conclusion

 

It is not justified by law whether it is compulsory to give a response to each and every legal notice that come across to an individual, but notices pertaining to tax matters of a company or an individual, it is mandatory to respond to the income tax officers.

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Procedure for filing a Notice in India

By: admin Documentation 30 Dec 2019

Nowadays, we enter into legal proceedings on a day to day basis and file cases against many individuals or firms.  In certain cases, issuing a notice becomes an integral part of such a matter where the other party is intimated that a suit shall be filed. In certain legislations, sending a notice is mandatory before filing a case in the court of law.

It is, therefore, important for us to understand as to what would be the procedure of filing a notice in the court of law or to the concerned individual.

 

Importance of Filing a Notice

 

Before deciding anything in relation to a court case or any other important matter related to the law, it is essential that one must file a notice before the court of law or to any individual or a firm and it would be an added advantage as it will save some time and money during the legal proceedings.  It may also act as evidence in certain cases where the need for producing a notice arises.

Even though there is no coded procedure it is still important that one follows a proper method for filing the notice in order for it to not stand illegal or void. It is high time that a specific coded procedure is made for the same so that no problem arises in the future.

 

Types of Notices

 

The following are some types of notices which are generally sent –

  1. Notices for Tenant Eviction
  2. Notice against an Employee or the employer of the company
  3. Notice in relation to cheque bouncing matters
  4. Notice in regards to consumer dispute    
  5. Notice pertaining to tax payer’s matters and many others
  6. Notice of retirement by a partner
  7. Notice Of Dissolution Of Partnership

 

Procedure for Filing a Notice

 

Step1: Drafting of a notice

It is the first and the most important step while filing the notice. One should draft the notice keeping in mind all the important details such as the objective of the notice must be stated clearly.

Step2: Copy of the receipt

After you send a legal notice to the other party, one must keep the copy of the receipt as well as the notice which has been sent to the requisite party as a proof of evidence that it has been sent.

Step3: With or without a lawyer

You can always send a notice to the other party without taking the help of an advocate, but one must note that the notice that is drafted should contain only the relevant issues pertaining to the case. However, it is always advisable to hire an advocate before filing a notice.

Step4: Legal language

Proper legal language should be used; no casual words should be used while drafting the notice, and one must be very careful regarding it. If there are words which are not acceptable in the court of law, then it may get rejected. Therefore, one must take the advice of an experienced advocate before taking any further step.

Step5: Wait for the reply

The individual or the firm who has sent the notice must wait for a minimum time period that is 30days to receive the reply from the other party to whom it is sent.

There is no such set of the prescribed procedure for filing of a notice under the law. However, it is always advisable to take measures before filing a notice and one must look into the procedure for filing the notice as well.

 

Conclusion

 

Thus, before filing a case against the respondent or any other individual or firm, one must follow the procedure for filing the notice even with regards, to money matters. One must be very careful using the words while drafting the notice which has to be delivered.  Also, before taking any further action it is vital that the sender of the notice waits for the reply of the opposite party.

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Format of Legal Notices in India

By: admin Documentation 30 Dec 2019

A legal notice is a system of formal procedure and set of documents which are used in informing the other party that you intend to take legal action against the party. It also saves time and money of the concerned party who wish to file such a case.

 

Format Of Notice

 

Notice is an official document; therefore, it is very important to follow a strict format for drafting a notice for legal purposes. There is generally no correct or wrong format for drafting notices but it is essential to note that the structure should be suitable and the person or the organization it is sent to should understand it.

Given below is a rough draft regarding the format of the notice:

  1. Title: This is the most important point which has to be kept in mind while drafting the notice. The title which shall be mentioned has to be clear so that it helps the reader to identify the reason behind the notice.
  2. Date: Once the title of the notice is mentioned, on the left-hand side, the date has to be mentioned when the notice is drafted and issued.   As the date would be recorded for future reference.
  3. Name of the organization or the individual to whom it has to be sent: At the very beginning after the title of the notice, one must mention the name of the individual or the organization to which it has to be issued. This, in return, helps the other party to identify as to whom this notice has been issued.
  4. Heading: The next step must be the heading of the notice which should be written precisely, and the purpose of the notice must be served by the heading.
  5. Body of the notice: After mentioning the heading, a brief gist must be given regarding as to why the notice has been issued and what question of law has been raised.
  6. Sender’s name: At the end of the notice, the sender's name must be written and also the designation which he/she holds in an organization or professionally. The notice has to be signed by the person who is sending the notice.

 

Content Of A Notice

 

  1. It is crucial that the notices should cover all the details about the issue. It must contain the following W’s which are summarized below :
  2. WHAT: It must be clearly explained ‘what’ does the notice relate to. The details about what has happened and what might happen must be mentioned.
  3. WHERE: The crucial details regarding the location and ‘where’ the issue has occurred or such other details must be precise while writing a notice.
  4. WHEN: In this column, the date and time where the event has occurred and essential aspects of the same must be mentioned.
  5. WHO: To avoid confusion, the notice must contain the name of the person or the organization to which it has to be addressed. Accurate information will surely save time.

 

Important Points

 

  • Clear and precise: The maximum words to be used for notice should not be more than 50 words and language to be used should be precise and absolutely clear. The reader who reads it must immediately understand what this notice is about.
  • Formal language: It is a formal communication method; therefore; no informal language should be used while drafting the notice.
  • Simple words: No flowery language should be used. One must use simple words and make short sentences while drafting the notice to avoid ambiguity.
  • Passive voice: The sentences and words used while drafting notice must be written in a passive voice format.
  • Appeal: It must be neatly drafted and properly formatted before sending it to the accused party.

 

Conclusion

 

It is vital to have a proper format while drafting the notice as it is a formal way through which the message is sent out to the other party, and it gives a clear image as to what has to be done further.

Therefore, it is essential that the structure of the notice must be clear and precise, it must not create any confusion about the subject matter of the notice which has been sent to the concerned party. The notices form a part of the legal documentation which can be used in the court of law for documenting and recording the evidence during legal proceedings.

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