PROMISSORY NOTES -PROBLEMS- 5

LIMITATION PROBLEMS :- ARTICLE 35 - FOR RECOVERY OF PRONOTE AMOUNT IS 3 YEARS, UNLESS ANY PART PAYMENT WAS MADE AND ENDORSED ON THE REVERSE OF THE PRONOTE OR GAVE AN UNDERTAKING IN A SEPARATE SLIP WITH IN 3 YEARS, UNDER SEC.18 OF INDIAN LIMITATION ACT. OR EXECUTED FRESH PRONOTE OR AN UNDERTAKING UNCONDITIONALLY PROMISED TO REPAY THE TIME BARRED DEBT AS PER SEC. 25[3] OF INDIAN CONTRACT, THE LIMITATION WILL NOT BE EXTENDED. EXCEPT WHEN THE LAST DAY IS HAPPEN TO BE PUBLIC HOLIDAY, A SUIT CAN BE FILED ON THE NEXT DAY. ON THE LAST DAY WITHIN 24 HOURS, THE SUIT CAN BE PRESENTED FOR RECOVER Y.

18. Effect of acknowledgment in writing - (1) Where before the expiration of the prescribed period for a suit or application in respect or any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derived his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. (2) Where the writing containing thee acknowledgement is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act,1872 ( 1 of 1872), oral evidence of its contents shall not be received. Explanation - For the purposes of this section, - (a) An acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set-off, or is addressed to a person other than a person entitled to the property or night; (b) The word "signed" means signed either personally or by an agent duly Authorised in this behalf ; and (c) An application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right. NOTES - It is not necessary that an acknowledgment within Section 18 must contain a promise pay or should amount to a promise to pay. (Subbarsadya v.Narashimha, AIR 1936 Mad.939) The above section corresponds to S.19 of the old Act and makes slight changes. 35. On a bill of exchange or promissory note payable on demand and not accompanied by any writing restraining or postponing the right to sue. Three years The date of the bill or note.

PROMISSORY NOTES -PROBLEMS- 4

1. PECULAR PROBLEMS :- INSUFFICIENTLY STAMPED PRONOTE; PRONOTE WITH INCOMPLETE COLUMNS; PRONOTE SECRIBED BY PLAINTIFF HIMSELF OR SOME COLUMNS FILLED BY PLAINTIFF HIMSELF; STAMP NOT PROPERLY CANCELLED; ENDORSEMENT OF PARTPAYMENTS WITH OUT SIGNATURE OR TUMBING OF DEBTOR; LACK OF ATTESTATORS AND SCRIBER ; SELF SCRIBED OR BY THIRD PARTY BUT WITHOUT MENTIONING THE NAME AND SIGNATURE WHO SCRIBED THE PRONOTE;PARTPAYMENTS MADE BY THIRD PERSONS; 2. Sec. 20 of NEGOTIABLE INSTRUMENTS ACT SAYS THAT WHEN A STAMPED PAPER OF PRONOTE GIVEN WITHOUT FILLING UP COLUMS OR A WHITE PAPER WITH DULY STAMPED AND SIGNED WITH WHOLLY BLANK OR PARTLY FILLED, WAS GIVEN TO THE PLAINTIFF, THEN IT IS DEEMED THAT THE DEFENDANT AUTHORISED THE PLAINTIFF TO FILL THE COLUMN AND PLACE THE AMOUNT UP TO THE LIMIT OF STAMP VALUE; HENCE BY FILLING UP THE COLUMNS WITH REAL FACTS, THE PLAINTIFF CAN FILE A SUIT FOR RECOVERY OF THE AMOUNT INDEBTED BY THE DEFENDANT TO HIM; 3. SEC. 28,29 AND 35 OF NEGOTIABLE INSTRUMENTS ACT :- SAYS THAT IF AN AGENT SIGNS IN THE CAPACITY OF AGENT FOR HIS PRICIPAL ON THE PRONOTE OR MADE AN ENDORSEMENT ON IT . HIS PRICIPAL IS LIABLE ELSE HE ALONE IS LIABLE. LIKE WISE WHEN A LEGAL REPRESENTATIVE ENDORSED HIS SIGNATURE ON BEHALF OF DECEASED DEBTOR, HE HIMSELF LIABLE FOR TOTAL AMOUNT, IF NOT PLACED ANY CONDITIONS, ELSE, HIS SHARE IS ONLY LIABLE OUT OF ASSESTS OF DECEASED HE RECEIVED;4. AS PER ARTICLE 49 OF SCHEDULE -I OF INDIAN STAMP ACT - [a] when payable on demand - [i] when the amount or value does not exceed Rs. 250/- = TEN PAISE ; [ii] when the amount or value exceeds Rs.250/- but does not exceed Rs. 1000/- = FIFTEEN PAISE; [iii] in any other case = TWENTY PAISE; [b] when payable other Wise than on demand = the same duty as a Bill of exchange [No. 13] for the same amount payable otherwise than on demand AS PER AMENDMENT DATED 1-3-2004.

28. Liability of agent signing.-An agent who sign his name to a promissory note, bill of exchange or cheque without indicating thereon that he signs as agent, or that he does not intend thereby to incur personal responsibility, is liable personally on the instrument, except to those who induced him to sign upon the belief that the principal only would be held liable.

29. Liability of legal representative signing.-A legal representative of a deceased person who sign his name to a promissory note, bill of exchange or cheque is liable personally thereon unless he expressly limits his liability to the extent of the assets received by him as such. 35. Liability of endorser. In the absence of a contract to the contrary, whoever indorses and delivers a negotiable instrument before maturity, without in such endorsement, expressly excluding or making conditional his own liability, is bound thereby to every subsequent holder, in case of dishonour by the drawee, acceptor or maker, to compensate such holder for any loss or damage caused to him by such dishonor, provided due notice of dishonour has been given to, or received by, such endorser as hereinafter provided. Every endorser after dishonour is liable as upon an instrument payable on demand.

SEC. 498A AND LIMITATION

WHEN THERE IS NO CONTACTS BETWEEN THE COMPLAINANT AND RELATIVES OF HUSBAND FOR MORE THAN 3 YEARS, FROM THE DATE OF THE ALLEGED OFFENCE AND MARRIAGE, NO COGNIZANCE CAN BE TAKEN IN TO, AFTER FILING CHARGE SHEET FOR MORE THAN 3 YEARS. Section 494. Marrying again during lifetime of husband or wife

Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Exception-This section does not extend to any person whose marriage with such husband or wife has been declare void by a Court of competent jurisdiction,

nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge. 468. Bar to taking cognizance after lapse of the period of limitation.

(1) Except as otherwise provided elsewhere in this Code, no court, shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be-

(a) Six months, if the offence is punishable with fine only;

(b) One year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) Three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

¹[(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.] 469. Commencement of the period of limitations.

(1) The period of limitation, in relation to an offence, shall commence, -

(a) On the date of the offence; or

(b) Where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier; or

(c) Where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier.

(2) In computing the said period, the day from which such period is to be computed shall be excluded.---2010[1]ALD CRI.953.

SEC. 498a AND 494 IPC- BY SECOND WIFE

COMPLAINT BY SECOND WIFE WHO FIELD CASE THAT THE HUSBAND SUPPRESSING FIRST MARRIAGE, MARRIED HER AND SUBJECTED HER FOR ADDITIONAL DOWRY HARASSMENT, IS MAINTAINABLE ?. AS THERE IS NO CLEAR DEFINITION IN THE SECTION FOR THE WORD "HUSBAND" - INCLUDING SUCH PERSONS WHO CONTACT MARRIAGE OSTENSIBLY AND COHABITATE WITH A WOMAN, [IT IS JUST AND NECESSARY TO INCLUDE THE HUSBANDS OF SUCH WHO IN PURPORTED EXERCISE OF HIS ROLE AND STATUS AS "HUSBAND" TO COVER A PERSON WHO ENTERS INTO MARITAL RELATIONSHIP AND UNDER COLOR OF SUCH PROCLAIMED HUSBAND SHOULD BE ADDED] , is not a ground to exclude for the offences of 498A and 304B - supression of mischief rule can be pressed into service.

Section 494. Marrying again during lifetime of husband or wife Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Exception-This section does not extend to any person whose marriage with such husband or wife has been declare void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.

498A. Husband or relative of husband of a woman subjecting her to cruelty. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation-For the purpose of this section, "cruelty" means- (a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical) of the woman; or (b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her meet such demand.] Section 494. Marrying again during lifetime of husband or wife Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Exception-This section does not extend to any person whose marriage with such husband or wife has been declare void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge. 2010 [1] ALD SC 331

sec.498A IPC - DIVORCE

AS THE OFFENCE WAS COMMITTED PRIOR TO TALAQ /DIVORCE, THE CASE AGAINST THE ACCUSED IS MAINTAINABLE UNDER SEC.498-A I.P.C.