Legal Notice: Introduction, Drafting and Filing

Format of a Legal Notice

Introduction

On occasions such as a consumer complaint, check bounce, eviction, divorce and many more a person or a legal person may need to take a legal action against another person or a legal person. In such matters it is important for the aggrieved party to inform the opposite party that they are going to initiate a legal action against them. For this a legal notice is drafted and send to the opposite party.

The most appropriate way to describe a legal notice is that it is a written document send by an aggrieved person or an entity. Which is sent as a warning to the person receiving it that the sender of the notice has a certain grievance which were not properly headed by the receiver. The sender must have given an opportunity to the receiver to resolve the issue.

A legal notice is the last warning given to the receiver before the sender would move forward for a legal action if the receiver doesn’t take this opportunity to resolve the issue in hand amicably.

Importance of Filing a Legal Notice

A legal notice is a polite reminder by the sender to the receiver that the doors of the court are still open if the opportunity is not taken by receiver to resolve the issue. Most likely the significance of a legal notice is that it is there to help an individual to clear their confusion about how they could initiate a legal action to resolve the matter. A legal notice is a new start from litigators point of view. There are four important aspects of a legal notice:

1. Clearing Intentions: On receiving a legal notice the receiver is given a clear indication of the sender’s intention to file a lawsuit for the purpose of resolving the issue to which the opposite party might respond before the limitation period the notice to save themselves from a legal suit.
2. Describing Grievance: An advocate can easily describe a person’s grievance in a legal notice.
3. Opportunity for Opposite Party: Receiver of the legal notice is given a last opportunity to resolve issues amicably.
4. Gentle Reminder: A legal notice also acts as a reminder for the receiver about the problem being faced by the sender.

Section 80 of The Code of Civil Procedure, 1908

A legal notice is sent only in civil cases. For criminal cases, a wrong is done against the society itself and this empowers the government to initiate a criminal proceeding. For initiating a civil suit against the government, serving a legal notice to the government is an essential.

U/S 80 of The Code of Civil Procedure, 1908 it is mandatory to serve a legal notice to the government of a public officer if a person wants to initiate a legal action against them for any act claimed to be done by such officer while discharging his duty. The limitation period for such legal notice is two months. The purpose of a notice served to the Secretary of State or the public officer is to give them a chance to re-evaluate their legal position to come to a solution for the same, without going to the court.

The same has been supported in the case of Bihari Chowdhary v. State of Bihar [AIR 1984 SC 1043], where the Hon’ble supreme court has stated that “The object of the section is the advancement of justice and the securing of public good by avoidance of unnecessary litigation”.

Essentials of Section 80 of Code of Civil Procedure, 1908:

1. Name, description, and place of residence of the sender of the notice.
2. Statement of cause of action.
3. The relief claimed by the sender of the notice.
4. Summary of the legal basis for the relief claimed.

This section mandates the service of a legal notice before filing of a suit in which the opposite party is government or public officer. It’s a good practice for an advocate to serve a legal notice before filing any civil matter in the court. It gives a good credibility for the story of the sender as it expressly states all the liabilities of the opposite party.

Section 138 of The Negotiable Instrument Act, 1881

Whenever a cheque bounces, it is mandatory to send a legal notice to the signatory of cheque within 30 days after the cheque bounces. On non-payment of the amount within 15 days of the delivery of the legal notice, a legal action can be initiated within 30 days after the completion of 15 days.

Criminal liability is also established under this section for dishonoured cheque by the drawer for 2 years of jail or fine or both.

• In the notice, it is necessary to provide details of the transaction for which the cheque was issued, details of the cheque, details of dishonour, etc. through a lawyer.
• Notice to be signed by both lawyer and payee.
• Notice to be sent through registered post.

Drafting a Legal Notice

A legal notice is generally sent by an advocate on behalf of the client. Assistance of an advocate is not necessary to send a legal notice; any person can send a legal notice on their own as well.

A legal notice is generally issued by an advocate for the purpose of soliciting a settlement. It is issued either to accept the settlement or to reject it altogether in order to avail a civil suit or legal remedies.

Step 1

A legal notice is generally issued on the letter head of the advocate who issues them. The letter head must have proper contact details of the advocate. Other small and important details includes the date on which the legal notice was issued along with name and contact details of the receiver.

A legal notice could be sent through a registered A.D. or through a court approved courier. No specific procedure is there to issue a legal notice. A legal notice can be tendered personally as long as opposite party accepts it willingly and signs an acknowledgment.

The first paragraph should be “Under the instruction of my clients _______ residents of _______. I have to address you as under”. It’s not a compulsion to follow this practice and can be different like “I am concerned for my client _______ who is a resident of _______ and accordingly, I have the privilege of addressing you upon his/her instructions”.

Step 2

A good practice is prefixing every paragraph with phrase “My client states”. This way the opposite party knows the statements that are being stated in the notice are directly coming from the client and are not cooked by the advocate. This implies client has instructed advocate to state those statements in the notice so that the reputation of the advocate is not tarnished infront of opposite party and hence helps in facilitating a settlement.

Step 3

Stating the remedy being seeked is an important part of a notice. This is generally stated in the last paragraph. The last paragraph is in an instruction to the opposite party from the advocate, along with a time frame. After expiry of such time period the sender shall be eligible to seek a civil remedy. Preferably it should be 30 days.

The last paragraph can be stated differently. Example:  if in the event of issuing the notice for the purpose of inviting a settlement then the last paragraph could be stated as “you are hereby called upon to settle the matter amicably or that you are hereby called upon to meet me in the office” or something of that sort for the purpose of settlement. Always ultimatum is should not be given to the opposite party rather invite the opposite party for a settlement. It shall not hamper the recourse to the legal remedies in case the notice fails.

Step 4

The client signs the legal notice, since the advocate is issuing the legal notice on the instruction of the client. This would act as an estoppel against the client from saying that the notice was not directed to issue by him because quite often this happens that if the advocate has faulted somewhere than the client alleges against the advocate and file complaints even before the consumer forum for deficiency in service.

Good Practices while sending a Legal Notice

• One can draft a legal notice on their own but a lawyer is always a better option.
• Make sure the notice is to be drafted on lawyer’s letter head.
• Prefer colour printout of the notice where lawyer’s logo, if any is available.
• Always keep two copies of notice, one with client one with you.
• Post the notice in an envelope having lawyer’s logo.
• Client’s and lawyer’s signature are a must in the notice.

Filing of a Legal Notice

While drafting a legal notice every word should be chosen properly so that unknowingly we don’t accept any fact in the legal notice that might be denied in the court of law later. The use of usual words while writing them in a very casual manner also holds legal importance and meaning of which we are unaware. A legal notice cannot be amended once it has been sent. The information and statements mentioned on the notice cannot be contradicted.

Step 1

An advocate should have good drafting skills. The preferred language is usually English, but can also be sent in any Indian language. The notice should address the opposite party clearly against whom a complaint or suit has arisen.

Step 2

While consulting the client about the details of the case, the information should be explained with the names of the parties involved, the address of the parties, dates of transaction done or need to be done, problems or issues faced any previous attempts of communication, etc.

Step 3

Advocate then should examine carefully the matter through the information provided, to make relevant and required points in the conversation with the client and should look for any additional information if required.

Step 4

The advocate then drafts the legal notice in the legal language clearly stating the reason for the sending of notice, all previous communications with the addressee regarding the grievances of the sender and provides a reasonable time frame of 15 days or 30 days to the addressee to settle the matter in hand by negotiating and performing the required action.

Usually lawyers on behalf of the sender of the notice depending on their grievance stress on the action to be performed in the mentioned time period to either fulfil the demand or seek for a reply.

Step 5

The notice is then signed by both the advocate and the client and is sent to Registered AD post and it is ensured that the acknowledgment is retained. Usually, a copy of the notice is kept with the advocate but the client can also take one from the advocate.

Step 6

It is expected that the other party will reply to the notice after they receive the notice, but as a usual practice, the advocate calls the other party after some time.

Conclusion

A legal notice plays an important role in the legal ecosystem. It is the last warning given to the receiver before the sender would move forward for a legal action if the receiver doesn’t take this opportunity to resolve the issue in hand amicably.