HOW TO FILE A LEGAL NOTICE

In today’s world we enter into numerous litigations with individuals/firms wherein filing of civil suit becomes imperative which we do generally file. Some individuals/firms enters into litigation straightaway while others opt for serving a notice upon opponent of giving out intention filing of a civil suit in court of competent jurisdiction. There are certain legislations which make it mandatory to file a legal notice before filing any litigation otherwise that litigation will be bad in law. For eg. The Negotiable Instruments Act, 1938. It therefore becomes important for us to understand as to what is meant by Legal Notice which is discussed herein.

What is a Legal Notice

A “Legal Notice” is a notice indicating your opponent that you are preparing to litigate a lawsuit against him in case the so called demand is not fulfilled.

Importance of Filing a Legal Notice

Before you decide to start a court case, there are several things that you should think about. Like majority of cases settle before trial. If you think your case can be settled, you may want to consider alternatives before you begin your lawsuit. Some of these alternatives are:

Negotiation (e.g., an exchange of letters between the parties);

Mediation; and

Arbitration

Taking a case to court can be an expensive and slow way of solving your problem. Many a time alternatives as mentioned above may serve out to resolve matter without even going to court. Nobody wants to waste their time & money in litigating over matter which can be resolved by negotiations very well. These days, even companies while entering into contacts with individuals/firms makes it obligatory on their part to specify clause stating that disputes are to be settled through arbitration instead of going to court.

However, when negotiations do not work, an individual/firm need not require to directly file a suit in court of law. Individual may serve a Legal Notice demanding resolution and giving clear intention of filing a lawsuit whereby there are chances of resolution of dispute through settlement avoiding law suit trials that run for years together.

Legal Notice under section 80 of The Code of Civil Procedure, 1908

Legal Notice is filed generally in civil cases. In criminal cases, no legal notice is filed as action is taken by the State who is the supreme power. However if you are seeking civil action against government you have to first serve government a legal notice. It is only thereafter that you can file civil suit against government.

Section 80 of Civil Procedure Code,1908deals with filing of Legal Notice in Civil Cases against Govt.which is reproduced hereunder:-

No suits shall be instituted against the Government (including the Government of the State of Jammu & Kashmir)] or against a public officer in respect of any act purporting to be done by such officer in his official capacity, until the expiration of two months next after notice in writing has been delivered

Exception to filing of Legal Notice – A suit to obtain an urgent or immediate relief against the Government may be instituted, with leave of the Court, without serving any notice but the Court shall not grant relief in the suit, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:

Contents of Legal Notice

It is very important that your legal notice is drafted elaborately covering all things that you demand from the opponent.

A legal notice must include the following:

Concise statement of the material facts giving rise to the claim;

Relief sought by the plaintiff against each named defendant;

Concise summary of the legal basis for the relief sought

Procedure to File Legal Notice

You can draft the notice yourself or avail the services of a lawyer.

2. The notice should be addressed to the person against whom you have the grievances.

3. Mention the cause that compelled you to send the notice.

4. Mention previous communications regarding the cause of notice.

5. Offer the addressee a reasonable time say 30 days or 60 days to settle the matter by negotiating and by performing the desired action.

6. Give time in notice for either fulfilment of your demand or giving reply

7. Sent it through Registered AD post.

Keep a copy of receipt of post office as well as notice.

You can personally send the legal notice without lawyer but it is advised that draft the notice meticulously, in such a way that it is not lengthy and containing all the material contents related to the cause.

Though every Legal-Notice can be legally send through person himself also– but on the basis of experience it is advisable that technical legal notice be drafted by a lawyer.

Another important thing is the DRAFTING OF THE NOTICE– Many times we do not know the legal importance and meaning of the usual words which we use in a casual manner — So when you are writing down the legal-notice than you should be extremely careful about each and every word that you use and be cautious about not admitting any fact which you may later on want to deny in a court of law as once the legal notice is dispatched than you cannot make any changes in that and later on also you cannot make any contradictory statement from what you have already stated in a legal notice.

Replying to Legal Notice

Although it’s not mandatory, yet it’s always advisable to reply APPROPRIATELY to a Legal Notice, citing the relevant clauses of applicable Laws. “No Reply to a Legal Notice” can be an added advantage to the opposite side, if it opts to proceeds to the court. The consequences for non-replying is not an offence under law, but if replied in a fitting manner, there are chances of putting an end to the future filing of vexatious cases. The reply should be given within the time stipulated in the legal notice sent by the other party. But in case it could not be replied due to the circumstances beyond your control and if there is any inordinate delay in replying, the compelling reasons may be briefly stated to avoid any misconception in the minds of the other party. If a reply is not sent for a legal notice, the other side may use it as an advantage to them while drafting the petition and put blame on you for not complying with the requirements of notice which has become the root cause for filing the case. The reply to the legal notice is generally welcomed by the Courts however for not replying to a legal notice will not automatically pave way for an ex parte decree, since the importance of a legal notice would end as soon as the Court proceeding starts. Only when you don’t appear in a case despite serving summons on you, shall the Court passes an ex parte order/decree.

Checklist For Replying To Legal Notice

First of all, read well the contents of the Legal Notice in the context of the Agreement, executed between the parties.

Secondly, check the limitation. Does the claim still within the limitation period? If the claim is time-barred, simply one line response to a legal notice will suffice.

Thirdly, check the contractual obligations of the Claimant which he was supposed to fulfill and the shortfalls, if any, shall be a good defense and one can seek full compliance of contractual deliverables to counter the payment demand notice.

Fourthly, if short-falls in the contractual deliverables are relevant and non-rebuttable then proceed expressing your counter-threat of your rights to claim damages against such short-falls of the opposite side which may deter the opposite side proceeding any further legally.

Finally, need to mention that “The rights of my Client will be fully protected legally at your cost and consequences and this reply is without prejudice to any other legal remedy which may be available to my client”.