This article is written by Amritha Priya, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from Lawsikho.com.

Introduction

The notice generally means knowledge of certain facts. Whom will the notice be served? The parties to a contract or parties who are legally bound to a contract or to those against whom a liability lies in the eyes of law. Should one serve notice?  It is obvious that one person must be aware of what he is alleged of, and notice sets out the allegations clearly; the main objective is to sort out any dispute amicably without the intervention of tireless litigation. When can a notice be issued? In case of contracts, where the parties are bound by the contract, agree to serve notice in case of termination or in case of winding up etc. What is the procedure for issuance of notice? It is not required for all notices to be served via lawyers; in case the purpose of the notice is to uphold someone liable or secure performance of a contract then serving a legal notice is advisable; in case if it’s a notice under an event management agreement, whereby the contractor should be informed about the clients’ upcoming projects etc, then normal notice shall be served (via mail). 

In this paper, I would define what notice is? Why is it important? Does all notice fall under the ambit of legal notice? What is the procedure established by law for serving notice? What is RPAD (Registered Post acknowledgement due)? How to draft a notice clause in a contract? Under what circumstance can a party claim he did not receive a notice?

Notice 

Notice means knowledge of certain facts, it is not specifically defined but Section 80 of Code of Civil Procedure provides for mandatory Notice before instituting a suit against the government. Legal notice means a formal communication to any person, corporate body, and institution informing one’s intention of bringing a legal action or lawsuit. However, in certain cases law precludes the party from serving a legal notice before instituting a suit. But serving legal notice becomes the first step towards the institution of a suit and serving becomes mandatory. Few statutes specifically mandate’s service of notice before instituting a law-suit like the: Negotiable Instrument Act, 1939 or Under Section 80 of CPC where a suit is filed against the Government. Should you attach any documents while serving notice? It is advisable for the parties to mention the type, specification of documents through which an obligation arose; or to specify the documents in possession of the party serving notice; or they can serve the notice with the documents for reference. That’s the sole discretion of the party who is serving the notice. Within how many days should the party respond to notice? party should respond to a legal notice within 30 or maximum 60 days. 

Importance of Legal Notice? 

A notice is issued before the institution of a suit. The main objective is to settle the dispute in the initial stage itself, rather than taking it to the court for a tireless litigation procedure. However, in certain cases where the party has incurred an irreparable injury and if the court is satisfied the rule of serving notice is relaxed. In such cases, an injunction order shall be passed, which is a temporary order. 

It also becomes obligatory on the client to provide correct and accurate information to the advocate, in-order to serve a proper notice. if the opposite party fails to respond within the specified time, then the sending party has a right to file a suit or if the party receives notice and he is not satisfied with the response he can still institute a suit.

Essentials of Legal Notice

1. The name of the parties must be clearly mentioned.
2. It must contain facts and grievances caused by the parties. 
3. Alternatives or relief sought in the dispute.
4. Signature and stamps of the lawyer who is sending the legal notice on behalf of the client is to be affixed.

How do you know if the Party received your Notice? 

Normally notices are sent by RPAD (Registered post acknowledgement due) when a party receives notice from the postal department, then he acknowledges the same. That acknowledgement stands as good evidence to show he received a notice. 

In Commissioner of Sales Tax v Sunil Haribhau Pote, the Bombay High Court observed that “the presumption that when the addressee whose address is set out on the envelope had an occasion to notice and peruse the packet, meant for him, but he refuses to accept it, then, that is deemed to be served”.  Therefore, the other party cannot deny that the notice is not served to him and that he had no knowledge about the same. It would be implied that he is unwilling to communicate with the sender. 

Madan & Co v Wazir Jaivir Chand, the Supreme Court observed that if the registered post is returned unserved, it is at the addressee’s own risk. It was also observed that when the postman is unable to deliver the post on his first attempt, he tries to deliver the same in the following days. He cannot look for the whereabouts of the addressee and deliver the post. In such a circumstance it presumed that the notice was served.

However, when an injunction decree is obtained, the party along with the order copy attaches a notice and sends it to the opposite party. This can be served either by the court or the party through RPAD. Is notice clause important in a contract? The contract is entered between two or more parties for certain purposes, like an event management agreement, business transfer agreement, lease deed, employment agreement etc. In any such contract/ agreement the notice period is essential. When is the notice clause used? In case the parties wish to retire from such contract before the event of termination or would wish intimate changes to be made or would wish to communicate anything officially, then the notice clause is generally looked into. Normally when a party wishes to back out even before the expiration of the agreement then they must issue a prior notice to the opposite party as per their negotiations. All that becomes necessary when serving a legal notice. Is serving notice a threat? No, by serving a legal notice the party wishes to inform the opposite party of duty/ obligation towards the non-compliance of work. It is not a threat, but mere intimation to the opposite party of what could be done if the party does not comply with his duty. 

How to Draft a Notice Clause in Contract? 

This differs from contract to contract. It depends on the nature and purpose of the contract. Generally, in contracts a notice clause defines in case the party wishes to terminate the legal relationship/ obligation much earlier, then how can that be achieved or proceeded with. How can a Survival clause stop the party? Can you compel the party to pay advance/ security deposited with the opposite party to be paid on the termination? 

Here are few sample notice clauses: 

1. This agreement shall begin on the effective date and shall continue for a period of 4 years. Either party may terminate the agreement prior to the completion of 4years but shall issue a legal notice by RPAD within 2 months prior to the notice. If the parties wish to continue the agreement after the completion of 4 year’s they shall renew the same, after the completion of 4yeras with revised terms and conditions. 
2. Anti – circumvention clause: If either of the party breaches any of the agreed terms and conditions of the agreement, and such a breach is not cured within seven days(7), after giving notice by the other party specifying the breach, the non – defaulting party has a right to terminate the contract, effective with ten days(10) further notice to the defaulting party. In case where the employee is indulging in fraud, unethical behaviour, non – performance of duty or any other action which is against law, and such activity would hamper the business, the employer shall terminate the employee at any time, by serving a termination letter stating the reason for such termination. 
3. Any notice required to be given hereunder shall be deemed to have been properly given if delivered personally or sent by pre-paid registered mail as follows:

To the Employee: #24, Sam Apartment, flat 2A, Bangalore. 

To the Employer: #53/1, 2 & 3, ABC Pvt ltd, Bangalore – 560009 

And if sent by registered mail shall be deemed to have been received on the 4th business day of uninterrupted postal service following the date of mailing. Either party may change its address for notice at any time, by giving notice to the other party pursuant to the provisions of this agreement.

This agreement shall commence as of 30/03/2019 and unless sooner terminated as provided herein, this agreement shall continue for ten years,(10) from the date of execution. This agreement shall then automatically be renewed for a single period of three years (3), provided that the reseller has met all the targets fixed.

Thereafter the agreement shall automatically be renewed for a single period of three years (3) unless either party gives notice of non-renewal to each other.

Termination by Mutual consent: This agreement shall be terminated at the will of the parties. The parties must give in writing the reason for such termination.

Sample of legal notice

Date: 24/9/2020

To, 

Name, address 

Legal Notice sent through RPAD

Sir, 

Under the instruction of my client, Mr. ABC, aged about x years, residing at, I do hereby serve upon you with the following notice. 

My clients submits that, (every para shall start with this phrase, and each para shall have one fact)

I therefore through this notice call upon you and instruct you to (why the notice is served? The compliance of obligation incurred?) failing which my client will be constrained to take civil/ criminal action against you. 

A copy of this notice is retained in my office for further necessary actions, the cost of the notice being XXX rupees. 

Advocate 

Name of the advocate

(Normally such notices are drafted and send through a letterhead, which specifies the address and details of the advocate)

When can a Party say he did not receive Notice?

The general presumption in law is that, if the party declines to receive a notice, that means he has adequate knowledge about the contents of the facts present in such notice. So intentionally denial to receive a notice will be against the party. But in certain case where the party has genuine reasons he can be permitted to show that: 

1. The details mentioned for delivery of notice was wrong. 
2. It was received by some other person. 
3. The party had changed his residential status but the notice was served to the old residence.
4. The notice was served to a minor in the house, and the party he was not aware of.
5. The notice did not deliver to his address etc.

Conclusion

The list is not exhaustive, but if he can prove his bona fide intention then his reasons will be accepted by the court. The court has inherent powers under section 151 of Code of civil procedure, where the court is satisfied then contention raised will be accepted and a reasonable opportunity would be given to the party.

In today’s world a notice can be sent through “Whatsapp” also. It is considered as a valid mode of serving a notice. When a notice has been sent through whatsapp and the blue tick over the application is considered as a valid evidence under the law.

SBI cards and Payments Services Pvt Ltd v. Rohidas Jadhav, in this case the Supreme Court has observed that the notice which is in the PDF format sent through whatsapp. It was contended by the state that notice was served in person and other means. The Bombay High Court held that this was a valid mode of service.

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