Whether plaintiff must pay ad valorem court fees if he is challenging demand notice issued by municipal corporation for specific amount?

 Suit R.C.S. No. 26 of 2021 has been filed challenging the

notice dated 21.06.2021. By this notice a demand has been

raised by the Municipal Corporation for a sum of Rs. 7,57,203/-

seeking reimbursement of expenses incurred in cleaning the

nallah on the basis that it was obligation of the petitioner to

clean the nala, and as the obligation was not complied by the

petitioner, the said work was undertaken by the Municipal

Corporation.{Para 6}

7. It is clear that although one of grounds of challenge is to

the obligation of the Municipal Corporation by relying upon the

provisions of the Corporation Act, what has been challenged in

effect is a demand notice which has been issued by the Municipal

Corporation seeking to recover the amount. In my view, the

submissions raised by the learned counsel for the petitioner as

regards the authority of the corporation and on the lease deed

are in fact grounds in support of the challenge to the demand

notice. The subject matter of the suit has been valued at Rs.

1,000/- on the ground that the petitioner is claiming declaration

and the notice is not susceptible to the monetary valuation and

as such has been valued under Section 6(iv)(a) of the

Maharashtra Court Fees Act. In my view since the demand

notice which is under challenge seeks to recover a monetary

component, it cannot be said that notice is not susceptible to

monetary valuation as submitted.

10. In my view, the Petitioner seeks adjudication of demand

notice seeking to recover a sum of Rs. 7,57,203/ which is capable

of monetary valuation and hence the impugned order directing

to value the suit as per the provisions of Section 6(iv)(a) of the

Maharashtra Court Fees Act is proper and deserves no

interference at the hands of this Court.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO. 3692 OF 2022

The Aurangabad Jilha Chemists and Druggists Association Vs

The Municipal Corporation, Aurangabad

CORAM : SHARMILA U. DESHMUKH, J.

DATE : 16TH JANUARY, 2023.

Citation: 2023 Lawweb (Bom HC ) 13.

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Whether offence of dishonour of cheque is made out if demand notice was sent to wrong address?

 Legal presumption of service of notice can only arise in case the notice is correctly addressed. If the notice is incorrectly addressed no legal presumption can arise. In the present case, the complainant had annexed the letterhead of the petitioner containing the address mentioned in the statutory notice but specifically mentioning there in the correspondence address as that of New Friends Colony.

23. It is not the case of the complainant that the petitioner was having an office or was ever found at Barakhamba Road, the address mentioned in the statutory notice.

24. Section 138 of the Negotiable Instruments Act mandates the issuance of the statutory notice as a pre-condition to filing of a complaint. The cause of action to file a complaint under section 138 of the Negotiable Instruments Act arises only on issuance and service of statutory notice and failure of the accused to comply with the statutory notice. In the absence of service of statutory notice the cause of action would not accrue. Service of statutory notice would also include legal presumption of service if circumstances so warrant.

Since the pre-condition of filing a complaint under section 138 of the Negotiable Instruments Act of sending a statutory notice has not been satisfied in the present case, no cause of action arose in favour of the complainant to file the subject complaint. Since no cause of action arose, the petitioner could not have instituted the complaint nor could the trial court as well as the appellate court by the impugned order have convicted the petitioner.

IN THE HIGH COURT OF DELHI

Crl. Rev. P. 438/2017

Decided On: 01.07.2019

R.L. Varma & Sons (HUF) Vs.  P.C. Sharma

Hon'ble Judges/Coram:

Sanjeev Sachdeva, J.

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Whether eviction decree is to be passed against tenant if he pays rent irregularly even after receipt of demand notice?

It is undisputed that the petitioner is a landlord and the defendant Nos. 1 and 2 are the tenants. It is also not disputed that the agreed rent is Rs. 400/- p.m. The bone of contention is about the payment of rent. The landlord had issued a notice on 2-9-2002, demanding the payment of rent, failing which necessary suit would be filed for recovery of amount and possession. The receipt of the said notice is not disputed by the tenant. The suit is filed on 2-12-2002. It is on record that the tenant had issued the banker's cheque in respect of the rent on 30-12-2002 i.e. after the lapse of 90 days and that too without the amount of interest. Both the Courts have concurrently found and held that the tenant failed to pay the rent within the period of 90 days from the date of service of notice upon him. The fact that the tenant did not deposit the rent along with interest after the lapse of 90 days is also held by both the Courts. Moreover, it is also observed concurrently by both the Courts that even during the pendency of the proceedings, the defendant has failed to deposit the rent regularly every month but has deposited in lumpsum sometimes the rent of eight months together. In such circumstances, even the judgment of the Division Bench of this Court in a case of Sitaram Maruti Nagpure vs. Fakirchand Purushottam Dhase referred supra and the judgment of the learned Single Judge of this Court in a case of Sitaram Narayan Shinde and others vs. Ibrahim Ismail Rais and others referred supra would not be applicable and the tenant would be liable for a decree of eviction on the said ground of having committed default.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

W.P. No. 4722 of 2011

Decided On: 20.09.2011

 Rafiq Ahmed Qureshi Vs.Iqbal Khan and Ors.

Hon'ble Judges/Coram:

S.V. Gangapurwala, J.

Citation: 2012(4)ALLMR647, 2012(1)MhLj337

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Whether notice demanding excess rent is valid?

Shri Naik, learned counsel appearing on behalf of the petitioner, submitted that the two courts below were in error in decreeing the suit on the ground of default. The principal contention urged by the learned counsel is that the contractual rent as claimed by the landlord was not Rs. 25/- but Rs. 12/-. Shri Naik submits that as the notice under Section 12(2) of the Act demanded rent at the rate of Rs. 25/- the notice was invalid and consequently decree of eviction cannot be passed. It is not possible to accede to the submission of the learned counsel. The finding of the two courts below is that the tenant was in arrears of rent for more than six months and notice under Section 12(2) was duly served. The tenant did not pay rent even at the rate of Rs. 12/- per month nor did file any application for determination of standard rent. It is undoubtedly true that the trial court held that the contractual rent was Rs. 12/- and the Appellate Court disturbed that finding without any reasonable ground. The Appellate court held that if the landlord is claiming that the rent was Rs. 25/- it should be so. The reasoning is entirely faulty and defective. The trial judge has given sound reasons for holding that the rent was Rs. 12/- per month. Accepting that finding, still the tenant cannot escape the decree of eviction because the tenant did not tender even that rent at the rate of Rs. 12/- within period of one month. The submission of Shri Nath that the notice is bad because excess rent was demanded cannot be accepted as it has been repeatedly held by this court that notice would not be invalid solely on that count. In case the tenant would have tendered rent at the rate of Rs. 12/- then readiness and willingness would have been established beyond any doubt. In these circumstances, the decree of eviction cannot be disturbed. Accordingly, petition fails and rule is discharged. In the circumstances of the case, there will be no order as to costs.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 531 of 1988

Decided On: 29.06.1989

 Sumatibai Sunderlal Awale Vs.  Banusaheb Peter Chavan

Hon'ble Judges/Coram:

M.L. Pendse, J.

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Whether there can be valid demand notice if copy of notice is sent to other side?

The question is: whether merely because copy of demand notice, which was addressed to defendant Nos. 1 and 2, was “forwarded” to defendant No. 3, fulfils the mandatory requirement of due service of a demand notice on the defendant No. 3 within the meaning of section 12(2) of the Act. By now, it is well established position that, unless a notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the Transfer of Property Act, 1882, no suit for recovery of possession can be maintained by the landlord against the tenant. The fact that defendants 1 and 2 have been duly served with the said demand notice would be of no avail, in the fact situation of the present case. In law, defendant No. 3 would become the direct tenant of the plaintiff in terms of section 5(1l)(aa) of the Act, soon after the determination of tenancy of defendant Nos. 1 and 2. On acquiring such status the plaintiff was obliged to serve the defendant No. 3 with a notice in writing about the demand of the standard rent and permitted increases in the manner provided in section 12(2) of the Act. It is not in dispute that the demand notice dated 22-10-1982 Exhibit 59 has been addressed to only defendants 1 and 2 and at the end of the notice it is mentioned that copy is marked to defendant No. 3 (i.e. C.C. sent for information). There is a marked difference between the requirement of sending a demand notice-which is necessarily required to be addressed to a person then merely forwarding a copy of such communication. The latter, at best is in the nature of apprising the recipient of that communication of the fact of issuance of a legal notice to the addressee (i.e. defendant Nos. 1 and 2) by the sender (plaintiff). On the other hand, the legal requirement is of sending or addressing a notice in writing of the demand to the tenant, which postulates putting him to notice about non-payment of the rent and permitted increases which is due, and “calling upon him to pay” the same forthwith, In other words, where the tenant happens to be an assignee, who is in possession of the suit premises in his own rights on account of a valid assignment and is allegedly in arrears of rent, a demand notice under section 12(2) must be given to him as well. In absence of such a notice to the assignee, the question of instituting ejectment suit against him on the ground of arrears of rent does not arise at all. In that, section 12(2) is a statutory bar for institution of suit against the tenant until a demand notice is issued to him and is duly served 
upon him in the manner provided for therein. The fact that the assignee may become aware about the contents of the demand notice sent to the original or head tenants does not extricate the landlord of his obligation to issue or address a valid demand notice to the assignee, if he wants to proceed even against the assignee along with the head-tenant for ejectment from the suit premises on the ground of arrears of rent. The fact that the plaintiff in this case was not aware that the defendant No. 3 (petitioner) was lawful transferee/assignee in the suit premises does not take the matter any further. The requirement of section 12(2) is not a mere formality. It is a mandatory provision and only on compliance of the said obligation, the cause of action to sue the tenant on the ground of arrears of rent would accrue to the landlord. Non-compliance of the said mandatory requirement in any manner would result in dismissal of the suit for want of cause of action-as the bar placed by sub-section (2) of section 12 of the Act is not lifted. A priori, even though respondent No. 1 (plaintiff) may have succeeded in getting ejectment decree against the defendants 1 and 2-the head tenants, that decree (insofar as the ground of default) will be of no avail against the assignee (defendant No. 3) unless it is shown that lawful demand notice was addressed also to transferee/assignee (defendant No. 3) and in spite of that notice he failed to pay the outstanding amount demanded in the said notice or file application for fixation of standard rent within a period of one month from the date of service of the notice.

Bombay High Court

Bombay Rent Act, Section 12(2) and (3)

(Bombay)

(Before A.M. Khanwilkar, J.)

Shankar Vishnu Sonar (Lohokare) 

Versus

Kusum Gajanan Pawar

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Whether landlord can seek eviction of tenant on ground of arrears of rent if valid notice is not issued to him?

Bombay High Court

Bombay Rent Act, Section 12(2) and (3)

(Bombay)

(Before A.M. Khanwilkar, J.)

Shankar Vishnu Sonar (Lohokare) 

Versus

Kusum Gajanan Pawar

W.P. No. 3794 of 1991

Decided on April 4, 2009.
Citation: 2009 Bom R C486

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Whether notice in case of dishonour of cheque will be invalid if specific amount claimed is not mentioned?

 However, it is seen from the impugned judgment and order
that the learned Magistrate has misdirected himself in reading the
evidence available on record so as to incorrectly find that the notice
(Exh.33) issued by the appellant was invalid.   It is true that in this
notice the appellant has not mentioned the amount of the cheque

either in figures or in words.  What the appellant has mentioned is the
number   of   the   cheque   as   656523,   date   of   the   cheque   being
23/02/1998, name of the Bank on which it was drawn and name of
the Bank to which it was presented for encashment.  Then, it is also
mentioned   in   the   notice   that   the   appellant   was   calling   upon   the
respondents to pay to the appellant within 15 days of receipt of the
notice the “amount of the cheque”.  It is significant to note that in this
notice, except for the amount of the cheque, no other dues or money
have been claimed by the appellant.   The notice clearly shows that
what was ultimately demanded by the appellant from the respondents
was nothing but the amount of the cheque.  So, it would be important
for this Court to examine whether there was any doubt about the
amount of cheque No.656523 dated 23/02/1998 in the mind of the
respondents. 
9. If one goes through the reply of the respondents vide Exh.
39, one would find that respondent No.2 had absolutely no doubt in
his mind about the amount of the cheque and it was of Rs.25,000/­.
Even before dishonour of the cheque, the evidence shows, respondent
No.2   had  admittedly   sent  a   letter   dated   07/3/1998  informing   the
applicant that respondent No.2 had not received the payment of Rs.

25,000/­,   being   the   amount   of   the   cheque.     Thus,   this   evidence
establishes   beyond   reasonable   doubt   that   there   was   absolutely   no
confusion or doubt in the mind of respondent No.2 that the amount of
cheque No.656523 dated 23/02/1998 drawn on Jintur Urban Co­Op.
Bank was of Rs.25,000/­ only.   I must say, at this stage, there is no
dispute about issuance of the cheque and it is nobody's case that there
were other cheques of the same date which were dishonoured.  In fact,
there is also no doubt about the validity of the notice vide Exh.33 with
no challenge having been made to it on this count at any point. This
can be seen from the reply given by respondent No.2 to the notice vide
Exh.33.  Even in the evidence of respondent No.2, no challenge to the
validity of the notice has been made on the ground that the notice
suffered from the vice of vagueness on account of non mentioning of
the amount of the cheque in a specific manner.  All these facts would
together show that the parties had understood as to what was the
amount of the cheque and what was due from the drawer under the
cheque to its payee.  As such, the learned Magistrate could not have
dismissed the complaint by holding, albeit wrongly, that the notice was
invalid. 
10. While   recording   a   wrong   finding   not   based   upon   the

evidence, the learned Magistrate has misinterpreted the judgment of
the Hon'ble Apex Court rendered in the case of Suman Sethi (supra).
In this case the Hon'ble Apex Court has clearly held that it is well
settled principle of law that the notice has to be read as a whole and in
the notice, demand has to be made for “said amount” i.e. cheque
amount and if no such demand is made, it would have to be examined
if the notice is bad or not on this count by considering the language of
the notice.  If, in the notice, a demand has been made not only for the
amount of the cheque but also for the interest and other charges, then
it would be necessary to bifurcate all these amounts by specifying as to
what is due under the cheque and what is due on other counts.  But, if
no such bifurcation is made and an omnibus demand is made inclusive
the amount of the cheque as well as the amount due on account of
interest, damages and other charges, such notice would be invalid in
law.   The learned Magistrate, confused himself in understanding the
law so laid down by the Hon'ble Apex Court and it appears that the
learned Magistrate was swayed away by some of the observations of
the   Hon'ble   Apex   Court,   which   he   reproduced   in   the   impugned
judgment and order by picking them up half heartedly. Therefore, I
find it necessary to reproduce the relevant observations of the Hon'ble
Apex Court as appearing in paragraph­8 of the said judgment in their

entirety and they read as under.:
      “It is well settled principle of law that the notice has
to be read as a whole.  In the notice, demand has to be
made for the “said amount” i.e. cheque amount.  If no
such demand is made the notice no doubt would fall
short of its legal requirement.   Where in addition to
“said amount” there is also a claim by way of interest
cost etc. whether the notice is bad would depend on the
language of the notice.   If in a notice while giving up
break   up   of   the   claim   the   cheque   amount,   interest,
damages, etc. are separately specified, other such claims
for interest, cost etc. would  be superfluous and these
additional   claims   would   be   severable   and   will   not
invalidate   the   notice.     If,   however,   in   the   notice   an
omnibus demand is made without specifying what was
due under the dishonoured cheque, notice might well fail
to meet the legal requirement and may be regarded as
bad. 
11. The above referred observations make it clear that in every
case a notice can not be held to be bad only for failure to specify
therein  the  amount  of  the  cheque  and it  would depend upon  the
language of the notice to come to an appropriate conclusion in the
matter.  I have already considered the evidence brought on record by
both the sides and found that this evidence sufficiently establishes the
fact that the notice was complete in all sense and specific demand was

made for payment of the “amount of the cheque” and that there being
no doubt or confusion or dispute about the amount of the cheque, the
notice conveyed what it ought to have and, therefore, valid in the eye
of law.  
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 225 OF 2001
Kamal s/o Babulal Sharma

..   Versus ..
 Ramkumar Sagarmal (HUF)

         CORAM :  S. B. SHUKRE, J.
         DATED  :  25th SEPT., 2014.
Citation: 2016 ALLMR(CRI)2652

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Whether accused in cheque dishonour case is to be acquitted if there was no proper service of demand notice to him ?

Section 138 of the N.I. Act has been analysed by the Apex
Court   in  Kusum   Ingots   &   Alloys   Ltd.   Vs.   Pennar   Peterson
Securities   Ltd.   (2000)   2   SCC   745,   and   it   is   held   that   the
following ingredients are required to be satisfied for making out a
case under Section 138 of the N.I. Act, which read thus :­
“(i) a person must have drawn a cheque on an account
maintained by him in a bank for payment of a certain
amount of money to another person from out of that
account for the discharge of any debt or other liability;
(ii)  that cheque has been presented to the bank within a
period of six months from the date on which it is drawn
or within the period of its validity, whichever is earlier;
(iii)  the cheque is returned by the bank unpaid, either
because the amount of money standing to the credit of the
account is insufficient to honour the cheque or that it
exceeds   the   amount   arranged   to   be   paid   from   that
account by an agreement made with the bank;
(iv)  the payee or the holder in due course of the cheque
makes a demand for the payment of the said amount of
money by giving a notice in writing, to the drawer of the

cheque, within 15 days of the receipt of information by
him from the bank regarding the return of the cheque as
unpaid;
(v)  the drawer of such cheque fails to make payment of
the said amount of money to the payee or the holder in
due course of the cheque within 15 days of the receipt of
the said notice.”
7. The offence under Section 138 of the Ni.I. Act would be
completed   only   when   all   the   above   components   are   satisfied.
Issuance of notice, in writing, to the drawer of the cheque is one
of the essential components of Section 138 of the N.I. Act.   As it
has been held by the Apex Court in Central Bank of India & Anr.
Vs. Saxons Farms and Ors. 1999(8) SCC 221, the object of the
notice is to give a chance to the drawer of the cheque to rectify his
omission and also to protect honest drawer.  Service of notice of
demand in clause (b) of the proviso to Section 138 is a condition
precedence for filing a complaint under Section 138 of the N.I.
Act.
8. Reverting to the fact of the present case, the appellant –
complainant   had   deposed   that     he   had   given   a   notice   dated

13.05.1994 to the respondent no.1 herein through his advocate.
He had produced the copy of the notice at Exh.49.   PW­1 had
stated that the said notice was received by one Asmita Amrutrao
Kadam on 23rd May, 1994 and that he could identify her signature.
He has deposed that the accused was residing in the house of
Amrutrao Kadam, the father of Asmita.  He had, therefore, issued
the notice on the said address.   The appellant – PW­1 complainant
had further stated that earlier he used to send letters on the said
address.   
9. It is pertinent to note that the copy of the notice at Exh.49,
states the address of the respondent no.1 as Nipaniwada, Nipani,
Tal. Chikodi, Dist. Belgaum. PW­1 complainant had admitted in his
cross­examination   that   the   respondent   no.1   accused   was   a
permanent resident of Nipani.   He has also admitted that in the
Regular Civil Suit No.594 of 1993, he had given the address of the
accused as a resident of Nipani.    He had further admitted that he
had   filed   the   affidavit   in   the   said   civil   suit   wherein   he   had

solemnly   affirmed   that   the   respondent   no.1   was   a   permanent
resident of Nipani.   He has stated that he has no documents to
show that the respondent no.1 accused was a resident of Pune.   
10. There is no evidence on record to prove that the accused
was at any time residing at Pune. On the contrary, evidence of the
appellant – complainant clearly reveals that the respondent no.1
accused is a permanent resident of Nipani, despite which he had
sent the notice under Section 138 of the N.I. Act at the address of
one Amrutrao Kadam, at Pune.   It is also pertinent to ntoe that
the appellant – complainant has stated that the said notice was
received by one Asmita.     He has, however not established the
relationship between the said Asmita and the respondent no.1
accused.   Under the circumstances, the learned Magistrate was
perfectly   justified   in   holding   that   the   complainant   has   not
complied with the mandatory requirement of issuance of notice.
The view taken by the learned Magistrate is a possible view and
the same does not warrant any interference.    
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 561 OF 1999 

Vilasrao Shripatrao Patil  v/s.  Pratapsingh Ranojirao Desai 

       CORAM: SMT. ANUJA PRABHUDESSAI, J.
        DATED: 28th AUGUST, 2015.
Citation:2016 ALLMR(CRI)2430

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Whether demand notice in case of dishonour of cheque is to be sent to each partner of partnership firm?

 Negotiable Instruments Act, 1881, Sections 138 – Dishonour of Cheque – Offence by firm – Demand notice – Partner of firm issued cheque on behalf of firm – Notice sent to partner who had issued cheque – Held, demand notice not required to be sent to each partner of firm – Notice sent held to be valid. 
 Perusal of the aforesaid provision leaves no doubt that the required notice had been issued to the drawer of the said cheque. It is not the requirement of law that the said notice must be sent to each of the partners. The drawer was the firm and only one of the partners may act on behalf of it. Once the notice was issued to the drawer, it would be compliance with Section 138 of the Negotiable Instruments Act, 1881.

Punjab-Haryana High Court

Anita vs Anil K. Mehra And Ors. on 17 November, 1995

Equivalent citations: 1998 94 CompCas 584 P H, (1996) 112 PLR 321

Bench: V Aggarwal

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