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negotiable-instruments:note:mode-of-notice

Mode in which notice may be given

Section 94 of the Negotiable Instruments Act,1881.

Notice of dishonour may be given to a duly authorized agent of the person to whom it is required to be given, or, where he has died, to his legal representative, or, where he has been declared an insolvent, to his assignee; may be oral or written; may, if written, be sent by post; and may be in any form; but it must inform the party to whom it is given, either in express terms or by reasonable intendment that the instrument has been dishonoured, and in what way, and that he will be held liable thereon; and it must be given within a reasonable time after dishonour, at the place of business or (in case such party has no place of business) at the residence of the party for whom it is intended. If the notice is duly directed and sent by post and miscarries, such miscarriage does not render the notice invalid.

This is an enabling section and is a corollary to the previous section. It lays down to whom notice may be served, its form, its contents and the time and place of service and the agency by which such service may be effected. The formal notice is essential to bind the parties. The fact that a party knows beforehand that the instrument has been dishonoured does not disentitle him to a notice from the holder. Mere knowledge is ineffectual without formal notice. Demand is not sufficient notice. When, therefore, the payee of a hundi meets the drawer after maturity and demands payment it is not sufficient notice.

May be given to whom

Besides the persons mentioned in the previous section the notice of dishonour may be given to a duly authorised agent of the person to whom it is required to be given. By duly authorised agent is not meant only one who has a special authority to receive it. It covers one who has authority to conduct a business generally and, therefore, has an implied authority to receive the notice. A solicitor is not such an agent and a notice to a solicitor is bad. But a notice given to the wife of the endorser or to his clerk is good. A notice given to a deceased endorser without knowledge of his death is good but such notice like all notices of dishonour must be given at the place of business or where the indorser resided at the time of his death. But if the party is not ignorant of the death of the indorser notice should be given to his legal representative. Notice to an assignee of an insolvent is optional.

Other provisions

Notice may be given in writing or verbally. It may be sent by post or through a messenger. Once a notice is correctly addressed and duly posted the notice is good and the sender will not be held responsible even if it miscarries. Wrong address will not vitiate the notice if such address is due to the negligence or the action of the party entitled to the notice. Delay in delivery by the post office does not affect the position of the parties if it is posted in time.

Form

No particular form or set of words is necessary to make a notice valid provided the fact of dishonour, the way in which it has been dishonoured, and the intention to make the addressee of the notice liable are expressly or impliedly stated in the notice. The notice must identify the instrument dishonoured. Trivial misdescriptions in giving the names of the parties or of the instrument do not, however, vitiate the notice. As per this section it is not required that the notice must be given by registered post.1)

In Raj Kumar Batra vs Urmila Devi2) the Hon'ble Punjab-Haryana High Court held that:

Since in the present case, the respondent could not prove that she was not residing at the given address in the complaint where the notice was sent through registered post as later on she was served at the same address, mere non-signing of the notice, does not invalidate notice even as per Section 94 of the Act.

General view is that, the notice need not even be signed but Rajasthan High Court while deciding the case Ramesh Chandra Baregama vs Ramesh Chandra Joshi3) held that:

Their Lordship has not considered the first principles of law that notice must contain authenticated information. In case a notice were unsigned, there is no authentication of the information contained in the notice. Therefore, with due respect, this Court is of the opinion that notice sent under Section 94 read with Section 138 of the Act would have to necessarily bear the signature of the sender. In case it does not do so, the notice is invalid in the eyes of the law.

1)
Janak Gandhi vs Mohan Mandelia And Two Ors.III (2005) BC 533, 2005 (1) MPHT 5
2)
25 April, 2018
3)
S.B. Criminal Leave to Appeal No . 254/2008, decided on 2 January, 2012

Created on 2021/02/25 16:06 by LawPage • Last modified on 2021/04/09 22:26 (external edit)