Initiating Legal Action and the Importance of a Legal Notice
Problems are inevitable and even the most prudent of all can land in trouble. However, matters get worse when such incidents involve a legal repercussion. People usually have a misconception that law comes into perspective only when a dispute arises, but to the contrary, law is present in every step of the way, you have legal rights from the day you are born, until your last breath. In fact, law protects you even when you are in your mother’s womb.
Needless to state that legal action does not come into the picture when a dispute arises, rather it comes into picture when you exercise your rights against another person, who may be an individual, a company or even the government itself. Now if we talk about the initiation of a legal claim/action, we often start with a legal notice, but again, it’s the dispute which came first, and all good lawyers, should and would first advise their clients to pursue all alternate recourse at their inter-personal level to settle the dispute outside the courts. Often, the grouse of an individual stems from an inflicted ego/ misplaced anger which is exactly what one should avoid.
However, there are instances where all dialogues and avenues have failed for an amicable settlement of the situation, and it’s a legitimate claim of the affected person which has been breached by the aggressor, not merely motivated by ego. In such a scenario one should go ahead with legal recourse.
Getting into the legal process is a daunting task, hence, all good lawyers first do a feasibility check on the claims made by the aggrieved party and the best possible outcome which may be awarded to the claimant by a Court of law. After close assessment of the claims and informing the clients of the possible outcomes, lawyers upon the brief provided by the client (claimant), prepares and sends across a legal notice to the opposite party.
While initiating legal action, legal notice plays a very important role. It is the core foundation of a legal process; therefore, it is critical that this first step is done right. Let’s dive in and see the intricacies of a good legal notice.
1. WHAT IS THE OBJECTIVE OF A LEGAL NOTICE?
As mentioned before, once all possible modes of settlement have failed, people initiate a legal process, which is generally started by sending a legal notice to the opposite party, clarifying your intentions of initiating a legal action against the opposite party. This may also be looked at, as a measure of last resort to settle the dispute outside the court, as the legal notice also incorporates a statement of settlement, which we will get to later. Coming back, there are two core objectives of sending a legal notice, one is to formally inform the opposite party of your intentions and second, to initiate/invite a dialogue of negotiations in order to save costs of going to a court for both the parties.
2. THE VALIDITY OF A LEGAL NOTICE
A legal notice is sent only in cases which are civil in nature, in criminal cases the process is initiated by the State against the wrongdoer/offender. As such there is no legal mandate (barring statutory notices) for sending a legal notice before initiating legal action, however as a general practice, a legal notice is sent to inform the opposite party of your intended course of action.
It must, however, be noted that in case, a person wants to initiate legal action against the State (Government) or a public officer for any action that is questionable in his official capacity, the provisions for such notice are provided under Section 80 of the Code of Civil Procedure. It explicitly mentions the conditions and process, which include that the legal notice shall be filed within 2 months of the objectionable act committed by the public officer. It is also to be noted that under Section 80, it is mandatory for a person intending to initiate such legal action against a public officer, has to compulsorily send a legal notice to the opposite party. The objective here is to enable the public officer to reassess his legal standing and to offer compensation therefore, avoiding to go to court.
If we breakdown Section 80, it mentions the following requisites:
a) Name, Requisites, and Place of residence of the sender of the notice
b) Statement of a cause of action
c) The relief claimed by the sender of the notice
d) Summary of the legal basis for relief claimed
3. WHY DO WE NEED A LEGAL NOTICE?
As mentioned before, a Legal Notice is a form of formal communication to the opposite party about your intention of initiating a legal proceeding and to afford the opposite party a final opportunity to settle the dispute outside the court of law and avoid the litigation expenses.
4. WHEN CAN ONE SEND A LEGAL NOTICE?
The common issues where a legal notice is sent are:
a) Notice to an employer for violation of HR policies, wrongful termination from the workplace, violation of employment agreement, etc.
b) Disputes related to real-estate, not only owned property but also delayed possession of flats, inferior quality of construction etc.
c) Notice to a manufacturer or service provider for the inferior quality of goods or services.
d) Statutory Notices under the Insolvency and Bankruptcy Code, the Negotiable Instruments Act, SARFESI, Transfer of Property Act, Companies Act, Arbitration Act, etc.
e) Notice in matrimonial disputes and issues pertaining to divorce, child custody, maintenance, stree-dhan etc.
f) A legal notice should be sent right after all other means of the settlement have been exercised and availed to no reasonable result, and before a lawsuit has been filed in a court of law. The key thing to remember here is that a legal notice often results in unpleasant after-effects of an established relationship between the parties, and is often construed as an ultimatum to the other person.
5. POINTERS FOR DRAFTING A LEGAL NOTICE
a) The first step before sending a legal notice should be to seek a lawyer with good drafting skills. The notice could be drafted by you, but it is advised to hire a lawyer as they handle such matters on a day-to-day basis and will be able to guide you better. It is important that while briefing the lawyer, no details are missed and a valid actionable claim is incorporated in the legal notice.
b) While briefing your lawyer, be prepared with a list of parties involved, the addresses of the parties (where the legal notice is to be sent), list of events with dates and details, and anything else that can strengthen your case.
c) Make sure that the lawyer, has carefully incorporated all the details of the events which led to the dispute, if not, immediately inform the advocate of the same and get the necessary changes made.
d) As mentioned earlier, the legal notice also incorporates a statement of settlement, which is also a settlement of offer, which is given to the opposite party and a reasonable time is afforded to them for settling the matter outside the court. Typically, the time given to the opposite party to respond depends on a case-to-case basis, however, in daily practice, it is usually anywhere between 15 to 45 days, with various factors affecting the choice, which are better understood by the lawyer.
e) Once you and your lawyer are satisfied with the legal notice, a signed copy is sent to the opposite party, and a copy of the same is kept with the lawyer.
6. CONCLUDING REMARK
A legal notice is a formal legal document, prepared under the instructions of a client by an advocate. As we have discovered earlier, it is not mandatory to send a legal notice, barring a few statutory exceptions, it is a very important document, as it not only establishes a strong foundation for the initiation of legal proceedings but it also serves an alternate function of avoiding litigation in its entirety and affording an opportunity to the opposite party to settle the matter outside the court of law, thus saving valuable time, efforts and costs associated with legal proceedings. The success of a legal notice also largely depends of the drafting skills of the lawyer hired for the job, therefore it is recommended to discuss the entire matter with a lawyer and only then proceed when you are satisfied with the draft of the Legal Notice.
7. SAMPLE LEGAL NOTICE FORMAT
Please be advised, that this notice is only for reference.
_____________ Company Private Limited
Through its Managing Director
Under instruction and on behalf of my client Ms. A, Resident House No. _______________, I do hereby serve you with the following notice:-
1. That my client was appointed by your offer letter dated _________________________ and the salary of my client was fixed at Rs. _____________ per month with respect to your offer letter dated _______________. But my client joined her duty on ________________ with you.
2. That my client did her duty diligently, regularly and with utmost punctuality and sincerity, and with full devotion by doing manual job with her own hands in accordance with the well-settled provisions of the law. You issued the offer letter in the name of my client and got printed the visiting cards also in the name of my client along with the Identity Card.
3. That on __________________________ when my client went to attend her duty then your office abruptly refused to allow to my client to attend her duty and told that services of my client are no more required by your office and thus the services of my client have been terminated by you in a most illegal and unlawful manner without any reasonable rhyme and cause. At the time of termination of the services of my client, you did not pay the salary for the month of ______ and ____ days salary for the month of __________ which comes to Rs. __________ to my said client.
4. That my client visited your office from 9 a.m. to 4 p.m. from time to time and spent a huge amount of Rs. ____________ on the charges of traveling but you refused to pay and also the amount of Rs. _____________ my client spent while doing field work for your company. Lastly on ____________________ you clearly refused to pay the salary amount of Rs. ___________ to my client along with traveling charges and amount spend on field work.
5. That you did not provide me statutory benefits i.e. Providential Fund. etc. You also did not pay amount of bonus and other service benefits which totally comes to Rs. ______________
I, therefore, call upon you through this Notice, to make the payment of the Rs. ___________ to my client along with interest up to date, under intimation to me, within the period of _____ days, failing which my client has given clear instructions to me to file criminal as well as civil suit and Suit for Recovery in the competent court of law and in that event you will be fully responsible for all costs, risks, responsibilities, expenses and consequences thereof. Please note well.
A copy of this Notice is kept in my office for record and further necessary action and you are also advised to keep the copy safe as you would be asked to produce in the court.