June 21, 2019

How to send a Legal Notice

Several occasions may arise when a person or entity ought to take legal action against another person. Some of these instances which are enlisted are –

consumer complaint, property dispute, check bounce, divorce, eviction, etc.

The focal point to file a Legal notice is to inform other person that you are about to take a legal action against them. This is why you send a legal notice to them.

What is a Legal Notice?

A legal action or intent announced by advertising in newspapers or some public posting. – Black’s law dictionary.

INCEPTION OF LEGAL NOTICE / WHY TO FILE LEGAL NOTICE.

The principle value of inception which stands behind a legal notice is “2^nd principle of natural justice”.

Audi Alteram Partem (RIGHT TO NOTICE)-Hearing starts with the issuance of notice to the affected party. It is the minimum essential requirement. If statute clearly for notice and it is not fulfilled then it is violation of principle of natural justice. A notice in order to be adequate must contain the following: a) Time, place and nature of hearing
b) Legal authority under which hearing is to be held, c) Statement of specific charges which the person has to meet.
In Car Sales Co-operative Society v. A.P AIR 1977 SC 2313, statute clearly provides for notice to be served before initiation of any action. It was not served. Court held it as violation of the principle of natural justice.
Notice means adequate notice i.e. mentioning time, place and name of authority taking action, grounds of action etc where notice is ambiguous, unclear and repeating the statutory language then it is not proper serving of notice. Notice must give enough time to person to represent his case properly.

Importance of filing a Legal Notice

A person can easily describe his grievances in a legal notice.
Serving of legal notice can give a chance to the opposite party to whom legal notice was served, resolve the issue amicably.
Acts as a reminder to the receiver of legal notice about his acts which knowingly or unknowingly have created a problem.

PARTIES INVOLVED IN A LEGAL NOTICE.

Salmond – “A person is any being whom the law regards as capable of rights and bound by legal duties.

Parties involved are – NATURAL and Artificial Persons.

Natural Person – A natural person is a human being inhibiting natural personality. According to Holland, a natural person is a human being as is regarded by the law as capable of rights and duties. Requisite of normal human being is that he must be born alive and he must possess essentially human characteristics. Generally a person/human being who has a capacity to sue and be sued is person.

Legal Person – A legal person has a real existence but its personality is fictitious. A fictitious thing is that which does not exist in fact but which is deemed to exist in the eye of law.

Example: Company or corporation, idol etc.

When to send a Legal Notice?

IN CASE OF LAND DISPUTES- mortgage, delayed possession delivery by the builder, eviction of the tenant, the partition of family property, etc.
IN CASE OF VIOLATION OF HR POLICIES- Notice to the employee for violation of the HR policies, sexual harassment act at the workplace, leaving the job without handing over the resignation letter, violation of any provision of the employment agreement, etc.
Product manifesting company in case of faulty product.
In case of cheque bounce.
In case of personal conflicts such as divorce, maintenance, child custody.
Legal Notice under the Code of Civil Procedure, 1908.

NOTICE UNDER SECTION 80(1) OF THE CODE OF CIVIL PROCEDURE.

Suits between individuals require no notice to be given to the defendant by the plaintiff prior to filing of a suit. However as per Section 80 of the Code of Civil Procedure, 1908, no suit will be instituted against the Government or against a public officer with regards to any act done by such an officer in his official capacity, until the expiration of two months after the notice in writing has been delivered to, or left at the office of:

(a) in the case of a suit against the Central Government, except where it relates to a railway, a Secretary to that Government;

b) in the case of a suit against the Central Government where it relates to a railway, the General Manager of that railway;

(c) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorised by that Government in this behalf;

(d) in the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district;

(e) in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims.

In Bihari Chowdhary v. State of Bihar, The appellants herein are the plaintiffs in a suit instituted in the Munsiff’s Court, Bihar Sharif, seeking the reliefs of declaration of title and delivery of possession with mesne profits in respect of the properties described in the plaint. The State of Bihar-the first respondent herein – is the main defendant in the suit. Prior to the institution of the suit, the plaintiffs had issued a notice to the first respondent State-under S.80 CPC on February 18, 1969 and Exhibit 2 is a copy of the said notice. However, without waiting for the statutory period of two months, the plaintiffs instituted the suit on April 2, 1969.

It was held that object of the section is the promotion of justice and ensuring of public good by avoidance of unnecessary litigation.

Essentials of Section 80 of Code of Civil Procedure, 1908

1. Name, place, description and place of abode of the sender of notice.
2. reason or cause of action.
3. relief which the sender is looking forward to seek.
4.Summary of the legal basis for the relief claimed.

Is serving of Legal Notice mandatory?

As per Section 80 of the Code of Civil Procedure, 1908 it is mandatory to serve a legal notice prior to filing a suit if the opposite party is Government or Public officer. But, in general, it is seen that Advocates serve legal notice before the filing of all the civil cases. However, it is not mandatory to render a legal notice in all civil cases except in case of the filing of a suit against the Government or Public officer but formally it is been sent by the party intending to sue.

The reason behind this is to bring it to the knowledge of the opposite party that the sender of notice is making an effort to arbitrate the matter outside the court.

Legal Notice under Section 138 of the Negotiable Instrument Act, 1881

If a cheque is bound, it is mandatory to send a legal notice to the payer within a time frame of 30 days from the date of bounce. If no repayment of money is received after 15 days of the delivery of the legal notice, then you can proceed a legal action within 30 days from the date of completion of 15 days time period.

Criminal liability is also established in the form of unliquidated damages under this section wherein the drawer of the bounced cheque (dishonored) may get a sentence of 2 years jail term or fine or both.

Prerequisites –

In the notice, you have to provide details of the transaction for which the cheque was issued, details of the cheque, details of dishonor, etc. through a lawyer.
Notice to be signed by both lawyer and payee.
Notice to be sent through registered post.

How to draft a Legal Notice?

A legal notice is necessarily a notice sent by an advocate on the behalf of his/her client. It is not mandatory for a person to send a legal notice through an advocate, he/she can send a legal notice on his/her own accord without taking the assistance of an advocate.

The Procedure of filing of a Legal Notice

While writing down a legal notice, initiators should be precise about each and every word that they use and be watchful about not admitting any such fact which they may deny later on in the court of law. Once a legal notice is sent one cannot make any corrections to it and later on, also one cannot contradict the statements and information that you have already mentioned in the legal notice.

Step 1

Look for a lawyer with good drafting skills.

Step 2

Explain the information in detail to lawyer.

Step 3

Careful examination of the matter through the information provided.

Step 4

Drafting of the legal notice in the legal language.

Step 5

The notice is then duly signed by both the advocate and the client and is sent to Registered AD post and it is ensured that the acknowledgment is retained.

Legal Notice Format

ADVOCATE NAME

OFFICE ADDRESS

DESIGNATION

_____________

CONTACT NO.

_______________________________________________________________

Ref. No.________

Dated: ________

REGISTERED A.D.

To,

1- _______________

2- _______________

SUBJECT: LEGAL NOTICE UNDER SECTION ____OF _____ ACT, _____.

Dear Sirs,

Under instruction and on behalf of our client _______ son of _______, resident of _______, I do hereby serve upon you with the following notice under section ___ of the _______ Act

1- That my client ______________.

2- That since ______________.

3- That on ______________.

4- That my client filed a Demand Notice ______________.

I therefore through this Notice call upon you ______________.

A copy of this legal notice is retained in my office for further necessary action.

ADVOCATE NAME

Notice under Negotiable Instruments Act, 1881 regarding dishonor of cheque

To,

Sh.(Name & Address)

________________

Sub:- Notice under Section 138 of the Negotiable Instruments Act for Cheque Dishonoured due to insufficient funds.

Dear Sir,

Under instructions and authority from our client M/s. ________ having their office at _________, we serve upon you the following notice of demand under Section 138 of the Negotiable Instruments Act.

That your business concern M/s _______ had purchased from my client goods (Name and brief description of goods) vide their invoice bearing no. ___ dated ________ for Rs._______
On delivery of goods above mentioned, you issued a cheque bearing no. ____ dated _________ for Rs._______drawn on ____ Bank.
That when the aforesaid cheque was presented by our client M/s. ____ to your Bankers i.e. ________ the same was returned unpaid by the Bank with the remarks/reasons “Insufficient Funds”. This fact was brought to your notice by our client vide letter dated_______.
That in reply to our client’s letter, you sent a letter dated ____ requesting him to deposit the cheque again with a banker and assured him that they will be cleared this time.
My client again presented your above-mentioned cheque with its bankers, this time again cheque was returned unpaid by the bank due to insufficient funds.
That thereafter in spite of many telephonic reminders and personal visits by the representative of our client to your office, you failed to make the payment due to our client.
That on account of the above facts, you are liable to be prosecuted under section 138 of the Negotiable Instrument Act, 1881 as amended up to date under which you are liable to be punished with imprisonment which may extend to one year or with fine which may extend to twice the amount of cheque or with both.
Under the circumstances, we call upon you to make the payment of Rs. _____ being the principal amount of the aforesaid cheque along with interest @ ____ % per annum till the time of actual payment within a period of 15 (fifteen) days from the date of receipt of this notice, failing which we will be bound to take further necessary action under the provisions of Negotiable Instrument Act, 1881 against you in the competent court of law at your risk and cost.

This is without prejudice to all other legal rights and remedies available to our client for the above-stated purpose.

Kindly take notice.

Date:____________

Yours faithfully,

____________

Notice By Purchaser For Specific Performance Of An Agreement

Registered A.D

……………………………..

Date ………………………

TO,

…………………………..

………………………….

Dear Sir,

Re: Sale of House No. ………, situated at …………………………..

You had agreed to sell the house No. …………….., situated at ……………………………………………… to me vide an Agreement for sale dated ………………….. executed between me of the ONE PART and you of the OTHER PART and as per clause …………. of the said Agreement for sale, the Deed of Conveyance, is to be completed within …………………. months from the date of said Agreement.

I hereby give you notice that I the undersigned …………………. was and am still ready and willing to complete the purchase, subject to your performing your part of the said agreement and I require you to complete the same and if you fail to complete the same within ……………… days from the date hereof, I shall file a suit against you for specific performance of the said agreement for sale with damages and costs.

Yours faithfully,

……………….

Notice by Vendor to complete the purchase of immovable property

………………………………..

Advocate

………………………………..

Date ………………………….

TO,

………………………..

……………………….

………………………..

Re: Sale of House No. ……………., situated at …………………………………

Dear Sir,

Under instructions from my client Shri ………………….. etc. residing at …………………………………………………… I have to state as under:-

My client had entered into an agreement for sale dated …………… with you for sale of house No. …………, situated at …………………………………. for a consideration of Rs. ……….. and in terms of clause………….. of the said Agreement, the said transaction is to be completed within ………. months from the date of the said agreement.
My client was and is still willing and ready to execute a sale deed in your favor or in favor of any person as you may direct in accordance with the terms of the said agreement, but the same was not done for reasons of your own.
I hereby call upon you to have the deed of conveyance executed by my client against payment of the balance of the consideration money on or before the ………… day of ………………….. in terms of the said agreement, failing which the said agreement will stand canceled and the earnest money paid by you will stand forfeited. However, this is without prejudice to the rights of my client to recover all costs, damages, losses, and expenses incurred by him by reason of your default in performing the said agreement.

Yours faithfully,

……………….

Notice under section 80, Code of Civil Procedure, 1908 against Public Officer

……………………………..

Advocate

……………………………..

Date ……………………….

TO,

Shri ……………………

Medical Superintendent,

………………….. Hospital,

…………………..

Re: Notice under section 80, Code of Civil Procedure,1908

Dear Sir,

Under instructions and on behalf of my client Shri ……………. resident of ………………….. I hereby give you notice as follows:

On or about ………………….. you were the Medical Superintendent of ………………….. Hospital. ………………….. and you were also the Head of the Deptt. of Surgery of the said hospital.
Shri ……………. was admitted to the said ………………. Hospital on …………….. for surgical operation for removal of stones in the kidneys under your care and supervision and ……………. was fixed the date of operation of the said Shri ………………
When the said Shri ……………. was being operated, you were personally present in the operation theatre and doing the operation with the assistance of junior doctors.
After removing the stones, you, while undertaking to stitch, had negligently, carelessly and willfully left a big piece of cotton inside the body, due to which my client started to complain severe pain in the kidneys for which you had prescribed some antibiotics on various visits.
When my client could not get treatment for his pain, he went to ………………….. and consulted Dr. ……………… of ………….. Nursing Home ……………… who opined that there is some foreign element around the kidney, for which my client was operated on ……………… in ………………. Nursing Home and a piece of cotton were removed from inside the body and after the removal of the cotton, my client had got relief from pain.
My client Shri ………………….. had to undergo physical and mental suffering for the negligence, carelessness, and mistake committed by you and he had to spend a lot of money for treatment of pain, which was caused due to leaving the piece of cotton inside the body by you, while undertaking operation for removal of stones in the kidney.
The said ……………. therefore demands from you Rs. ………….. as damages for physical and mental suffering, Rs. ………………….. as expenses incurred by him in the operation and treatment, Rs. ………………. as expenses incurred by him in transport, hotel, etc. totaling Rs. ……….. and I hereby give you notice that if the said amount is not paid, the said ………………….. will, on the expiry of two months from the date of service of this notice, file a suit against you for the recovery of Rs. …………… as damages and expenses incurred by him, at your entire risk as to cost and consequences.

Yours faithfully,

…………………..

Advocate

Conclusion

In a nutshell, legal notice is an authoritative document which is to be duly sent by aggrieved person to showcase their pleadings and providing an opportunity to the receiver to arbitrate the matter outside the court.
Though it is not mandatory to file a legal notice unless the notice is against the government. (Section 80 of code of civil procedure).
Lately in most of the cases the issues are starting to get resolved just by sending a legal notice.