If say suppose a builder has committed a breach of contract which was entered upon with the other party thus thereby violating the terms and conditions of contract for the late deliverance of the possession. So, considering the above-mentioned situation, what is the possible remedy to take when such a party has incurred losses?
Answer: So, in such a scenario, the very first step that the suffering party could take is to serve a Legal Notice which is preferably drafted by a lawyer.
A legal notice is a formal written notice, communicating between both the parties i.e the sender and the recipient where the sender informs the recipient about the intentions and grievances of the sender to initiate a legal proceeding against the latter. There are several types of notices: public notice, actual notice, constructive notice, and implied notice.
For example, if a person “A” takes on credit goods from another person “B” on the pretext that he will pay the amount on a date so specified and agreed upon between the two and later upon the expiry of the date mentioned, fails to make such payment. In such a situation, “B” can issue a legal notice for the recovery of money.
The Bombay High court in Kross Television India Pvt. Ltd. v. Vikhyat Chitra Production (2017) held that – the “Indian Judiciary system is flexible enough to consider a notice issued through ‘WhatsApp’ or email admissible in the court of law. The plaintiff doesn’t need to go through extreme measures like that of a bailiff or through the ‘beat of a drum’ for the notice to be considered as properly served. The defendants were duly notified in the eyes of the court.”
Following are the examples of civil cases wherein a Legal Notice can be served:
Consumer Protection: When a person who decides to purchase a particular good (consumer) based on what has been represented and displayed to him is falsely represented and damaged or which is not as per does not exceed his expectations and requirements, therefore a Legal Notice can be issued before any legal proceeding to solve the issue arising out of the defects that has been caused.
Divorce: When the new couple is unhappy in their marital relationship and decides to dissolve their marriage and seek a divorce, the spouse can send a legal notice to the other spouse communicating his/her intention to undertake legal proceedings against the other spouse.
ESSENTIALS OF A LEGAL NOTICE
A Legal Notice is filed under Section 80 of the Code of Civil Procedure and it consists of certain elements which have to be adhered to before intimating to the receiving party the following are the essentials that constitute a legal notice:
- Facts have to be precisely stated and that action has to be taken for the grievances.
- Reliefs sought by the aggrieved party.
- Summarising the facts and how the grievances could be resolved.
- The problems faced by the aggrieved party and what has to be done to resolve the matter at the earliest.
- By specifying a relief by which a problem could be solved when small and mentally agreed upon.
A legal notice format must contain the following points:
- Name and required information;
- Place of residence of the notice sender;
- Aspects of the effect;
- The form of relief claimed by the sender of the notice;
- The gist of the legal basis for the relief claimed.
A legal notice could be sent through a Registered A.D. or a courier. There is no specific procedure to issue a legal notice. The notice can also be personally tendered to the opposite party, as long as the opposite party is willing to receive it and sign an acknowledgment of its receipt. There is no compulsion to send a legal notice only through a Registered A.D. or through a courier.
The situation when a Legal Notice can be served:
Consumer Forums: A legal notice may be issued in cases relating to buying and selling of goods and services when such a product or service is faulty product or service which is when a consumer may issue a legal notice to the seller to rectify the shortcomings.
Recovery of Dues: A legal notice for recovery of money is generally a formal intimation and a sort of deterrence between one party (plaintiff) warning the other(defendant) before proceeding with any legal action to receive their debt. The rapid increase of the economy toward the path of financial freedom has been seen in entrepreneurship and start-up businesses. IBM Institute for Business Value and Oxford Economics says that within 5 years, more than 90% of funded startups have been shutting down due to the negative cash inflow i.e., issues with the recovery of money. People have failed to recover a huge amount of money from debtors because of the lack of strong legal support which led to the closure of businesses or other financial instabilities.
Trademark Copyright Infringement: A legal notice for infringement of a Trademark can be issued when there has been unauthorized access or the same has been done without proper licensing. By serving a Legal Notice the owner of the Trademark can convey to the wrongdoer the legal issues that may arise for accessing the Trademark without proper Authorization. It also saves time and saves costs that otherwise would have been costly if the same was done through a court procedure.
In the case of Maya Rani Ghosh v. State of Tripura – No notice under Section 80 C.P.C. was given to the opposite parties though they include the State. No specific ground was taken against the maintainability of the application. The state did not take the plea that the application should not be entertained for non-service of notice. Held, that requirement of notice has been waived by the opposite party.
Cheque Bounce: When the drawer sends a cheque for the payment to the bank in the name of the payee is rejected and returned unpaid by the bank, the check is said to be “bounced”. Within 30 days from the date of bouncing of the cheque, a cheque bounce notice must be sent to the drawer of the cheque. To make the necessary payment, such a notice gives 15 days of a period from the date of receipt of a notice to the drawer and if he fails to pay, then a criminal complaint is to be filed in the Court within 30 days from the expiry of such 15 days. Therefore, the first step of acquiring your money in case your money is stopped due to bouncing of cheques, a legal notice is required.
Employer and Employee Issues: When an employee has been deprived of his salary or in case of wrongful termination by the employer, such an employee may issue a legal notice to the employer claiming the money that has to be paid to him.
In Hon’ble State Commission of Chhattisgarh (Jet Airways India Ltd) v. Satyaprakash Bansal and Anr. It was held in this case that legal notice, merely sending notice will not lead to a separate cause of action and mere submission of legal notice to a competent authority does not arrest time legal notice sent by the complainant after a lapse of two years and eleven months complaint barred by limitation.
A legal notice acts as an essential element that is the means of a mode of communication between the sender of the legal notice and the receiver upon whom such legal notice is being served. A legal notice is not necessary to be sent in all types of cases but it is important in cases such as a consumer protection case or a divorce case etc. Talking about the validity of a legal notice in terms of criminal offences, a notice will not be a favourable means since it is the state that institutes the action against the person who has committed the offence. Most importantly the purpose of such notice has to be understood which mainly focuses on the intention of the sender to inform the receiver of the legal measures that will be taken up if there is no cooperation from their end.
Authors Name: Khushi Jain & Raj Pankar (Goa University)