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2022 DIGILAW 1309 (JHR)

Emaar MGF Land Limited v. State of Jharkhand

2022-11-14

SANJAY KUMAR DWIVEDI

body2022
JUDGMENT : SANJAY KUMAR DWIVEDI, J. 1. Heard Mr. Indrajit Sinha, learned counsel for the petitioners, Mr. Ashok Kumar Yadav, learned counsel for respondent no. 2 and Mr. Mrinal Kanti Roy and Mr. Ravi Kerketta, learned counsel for the State. 2. In these petitions, common complaint case and common order taking cognizance are challenged and that is why all these petitions have been heard together with consent of the parties. 3. These petitions have been filed for quashing the entire criminal proceeding including the order dated 11.07.2016 passed by the learned Sub Divisional Judicial Magistrate, Jamshedpur in Complaint Case No. 850/2016, pending in that court. 4. The complaint case has been filed alleging therein that the complainant is a non-resident Indian, a Doctor by profession who booked a commercial unit from the accused who is a Limited Company, engaged in developing, constructing and building residential and commercial properties, in one of its project known as Capital Tower-1, Complex located at Sector 26, Gurgaon, Haryana. At the time of launch of the aforesaid project, a wide promotional campaign was undertaken by the accused by advertisements and sales promotion employees. It has been further alleged that great promises were extended to the prospective buyers by assuring high returns on investment. In such endeavor, two representatives of Ashish Jerath met the complainant and convinced him to invest in the above project by promising high returns on the investment. On persistent approached by the accused persons viz. 10 to 13, in the residence of complainant and the complainant was allured in investing his hard earned money in the project and booked a commercial unit bearing no. CT-1-GF-02, measuring 1996 sq. ft. in Capital Tower-1, Sector 26, MG Road, Gurgaon, for a total consideration of Rs. 6,54,54,506/- in joint names of self and his wife. As per requirement contained in the application form which the complainant was required to fill he was to pay Rs. 25,00,000/- as booking amount. As per payment schedule annexed with the application form, an applicant was required to pay a total amount of Rs. 65,19,521.43/- towards 50% of IDC, 10% of basic and 50% EDC towards booking. The complainant made the aforesaid payment by way of two installments i.e. a sum of Rs. 25,00,000/- vide cheque bearing no. 577282 dated 29.07.2013 and further sum of Rs. 40,19,521/- vide cheque bearing no. 675033 dated 05.10.2013. 65,19,521.43/- towards 50% of IDC, 10% of basic and 50% EDC towards booking. The complainant made the aforesaid payment by way of two installments i.e. a sum of Rs. 25,00,000/- vide cheque bearing no. 577282 dated 29.07.2013 and further sum of Rs. 40,19,521/- vide cheque bearing no. 675033 dated 05.10.2013. The complainant was to make further payments by way of financing a Bank would approve and release the loan installments on apprised of this position. None of this amount was towards earnest money. The application form was a printed form which contained conditions of application favourable to the accused and were totally arbitrary and constituted unfair trade practices. The complainant would neither add or delete any of the conditions mentioned in the form. The application form in conditions (viii) and (ix) described that the said application did not constitute any offer to definite allotment or any agreement to sell and the applicant would not become entitled to the provisional and/or final allotment of the unit, notwithstanding the fact that the company might have issued a receipt in acknowledgment of the money tendered with the said application. It was read that the application shall become definitive only after the execution of the agreement by an unauthorized signatory of the company. No agreement was executed by the parties and, thus, the said application had never become definitive. In case of non-execution of the agreement, the allotment was to be cancelled at the instance of approached to sign the agreement. It has been also alleged that the terms of the agreement cannot be forced by one party upon the second party. Both parties had equal rights to back out from entering into agreement, if the terms of the same were prejudicial to one's interest. The application forms further contained conditions which were beneficial to accused only, but highly prejudicial to the interest of the complainant. The terms and conditions provides that the so-called earnest money shall be 15% of the total consideration i.e. Rs. 98.00 lacs. Thus, term against the very concept of earnest money. The earnest money is a definite sum deposited at the time of entering into a transaction showing good faith of the buyer. It merges into sale price. The terms and conditions provides that the so-called earnest money shall be 15% of the total consideration i.e. Rs. 98.00 lacs. Thus, term against the very concept of earnest money. The earnest money is a definite sum deposited at the time of entering into a transaction showing good faith of the buyer. It merges into sale price. The initial deposit made by the applicant/complainant as mentioned in the payment plan was towards IDC, Basic and EDC and none was taken as earnest money as the contract was not finalized. All the acts performed by the accused as mentioned by it in the application form were provisional and in absence of any agreement between the parties, no condition in the application form was executable. As per terms of the application form (condition 16), the possession of the premises were to be handed over within 36 months of starting construction. It gives an uncertainty to the terms of contract which was to be entered later as to when the construction would start. The applicant could not be kept into dark as to the stipulated date of start of construction. It has been further alleged that the complainant after booking went several times to the site of construction in November, 2013 and was shocked to see that he had been mislead into believing that the construction had already started, as there was no activity at the site which would faintly suggest that the construction was to start in near future. There was no mobilization of plant and machinery or work force at the site. From the things out at the site, it clearly showed that the project was not going to embark upon in near future. The complainant worried about his investments, visited the offices (both the addresses) at several times, but no representative of the accused was present to answer the queries as to why the construction had not started. The complainant also tried to contact the Senior Officer of Emaar, but every time false promises and assurances were given to him that the construction was likely to start soon. Several correspondences in this regard initiated by the complainant remained un-responded. The complainant was told that the building/complex has been approved by the DTCP, Haryana DTP, Gurgaon, but whenever he wanted to see the Approval Letters and others related documents, the defendant on one pretext or other denied the same. Several correspondences in this regard initiated by the complainant remained un-responded. The complainant was told that the building/complex has been approved by the DTCP, Haryana DTP, Gurgaon, but whenever he wanted to see the Approval Letters and others related documents, the defendant on one pretext or other denied the same. The response and behavior of the representatives of the accused who occasionally met the complainant coupled with no activities at site led him to firm belief that he has been deceived and mislead by false promises and assurances of the accused persons in order to gain unfair advantage of collecting money before the project and commenced. The complainant in the circumstances demanded his money back, but the accused however, declined to pay any money. The foundation of the project is yet not completed. The complainant finding no other way made a request to the accused to transfer his booking to another project in the same vicinity known as “Commerce Park” where the construction had started, but the accused even refused to accommodate the complainant in the named project though several commercial units in that complex were vacant and for sale. The sale records of the accused in the complex “Commerce Park” would show that commercial units were available for sale at the time, the complainant had forwarded his request for transfer of his booking in this complex. Subsequent requests as aforesaid met the same fate and were declined by no reply. In the month of July, 2014, the complainant again made request through e-mail requesting the accused to move the complainant's investment to “Commerce Park” from Capital Tower. The request was sent to all those mattered in Emmar Group. It has been further alleged that in the same month, the complainant got a mail from the accused that a meeting had been, but when the complainant went to the meeting place, he found the usual Mr. Avinash Bhangia and Mr. Hardeep who had no inkling about the meeting and it resulted in harassment and waste of time of the complainant. The accused is holding complainant's money illegally and unjustifiably and is liable to return the same with an interest of 24% p.a. and all the accused persons made forged documents for the sake of company's benefit. Avinash Bhangia and Mr. Hardeep who had no inkling about the meeting and it resulted in harassment and waste of time of the complainant. The accused is holding complainant's money illegally and unjustifiably and is liable to return the same with an interest of 24% p.a. and all the accused persons made forged documents for the sake of company's benefit. The accused has persistently refused to refund the hard earned money of the complainant or to transfer the booking into another project where the work of construction is going and, therefore, the complaint case has been filed. 5. Mr. Indrajit Sinha, learned counsel for the petitioners submits that there is an agreement of purchase and sell of commercial unit GF-002 admeasuring 1996 sq. ft. in the Project Capital Tower-I, Sector 26, Village Sikandur Goshi, Tehsil and District Gurgaon between petitioner-company and respondent no. 2. He further submits that the allegations are made that sum of Rs. 65,19,521.43/- has been defalcated by the petitioners. He also submits that the petitioners have been arrayed as accused nos. 1 to 5 and 9 to 13 in the complaint case, who are Directors and officials of the company, as has been disclosed in paragraph 10 of the petition. He also submits that a provisional allotment letter was issued in favour of respondent no. 2 and sent to his New Delhi address by the company. He further submits that thereafter a Builder Buyers agreement was also sent to respondent no. 2 at his New Delhi address, provided by him and the said agreement was never returned to the company with the signatures of respondent no. 2. He further submits that a letter dated 26.12.2013 was also sent to respondent no. 2 with a request to make the remaining payment, but no response has been provided by respondent no. 2. He further submits that for recovery of the amount in question, respondent no. 2 has filed the civil suit before the learned Civil Judge (Senior Division), Gurgaon, which was dismissed vide judgment dated 11.07.2016. He also submits that after dismissal of the said suit, respondent no. 2 has approached National Consumer Disputes Redressal Commission, New Delhi in Consumer Case No. 2087 of 2016, which was also dismissed vide order dated 11.09.2019. He further submits that for civil wrong, complaint case has been filed and the learned court has taken cognizance against the petitioners. He also submits that after dismissal of the said suit, respondent no. 2 has approached National Consumer Disputes Redressal Commission, New Delhi in Consumer Case No. 2087 of 2016, which was also dismissed vide order dated 11.09.2019. He further submits that for civil wrong, complaint case has been filed and the learned court has taken cognizance against the petitioners. He also submits that there is lack of territorial jurisdiction. On these grounds, he submits that entire criminal proceeding including the order taking cognizance is bad in law and the same deserves to be quashed. 6. On the other hand, Mr. Ashok Kumar Yadav, learned counsel for respondent no. 2 submits that criminality is there and merely because civil suit and the case before the National Consumer Disputes Redressal Commission have been dismissed, the entire criminal proceeding cannot be quashed. He further submits that cheating is made out with respondent no. 2. He also submits that the learned court after looking into the solemn affirmation and two enquiry witnesses, has been pleased to take cognizance against the petitioners. There is no illegality in the order taking cognizance. 7. Mr. Mrinal Kanti Roy and Mr. Ravi Kerketta, learned counsel for the State submit that after looking into the solemn affirmation as well as two enquiry witnesses, the learned court has taken cognizance against the petitioners. They further submit that there is no illegality in the order taking cognizance and, therefore, this Court at this stage may not interfere under Article 226 of the Constitution of India. 8. In view of the above facts and submissions of the learned counsel appearing for the parties, the Court has gone through the materials on the record and finds that admittedly the complaint case has been filed by respondent no. 2 alleging therein that sum of Rs. 65,19,521.43/- has not been returned by the company and for that the Directors and other officials of the company have been made accused. What are the roles played independently by these petitioners, has not been disclosed in the complaint case. For recovery of the amount in question, civil suit was filed by respondent no. 2 which was dismissed by the learned Civil Judge (Senior Division), Gurgaon vide judgment dated 11.07.2016. What are the roles played independently by these petitioners, has not been disclosed in the complaint case. For recovery of the amount in question, civil suit was filed by respondent no. 2 which was dismissed by the learned Civil Judge (Senior Division), Gurgaon vide judgment dated 11.07.2016. It has been stated in paragraph 16 of the complaint petition that the accused is holding complainant money illegally and unjustifiably and is liable to return the same with interest of 24% p.a. and all accused persons made a forged documents for the sake of company's benefit. Respondent no. 2 has also approached National Consumer Disputes Redressal Commission, New Delhi in Consumer Case No. 2087 of 2016 and after considering all the facts the Commission has also dismissed the said case vide order dated 11.09.2019. There is no doubt that if criminality is made out, civil and criminal cases can go simultaneously, however if the case is purely civil in nature, criminal case cannot be proceeded. It is no comfortable thought for the petitioners that the complaint be filed against any person and by way of adducing witnesses, criminal cases are said to be made in question, as has been held by the Hon'ble Supreme Court in Pepsi Foods Ltd. and Another vs. Special Judicial Magistrate and Others, (1998) 5 SCC 749 . Admittedly for recovery of the amount in question, the complaint case has been filed, wherein, cognizance has been taken against the petitioners. The case is entirely civil in nature for which, criminal case is abuse of process of law. 9. In view of the above facts, reasons and analysis, the entire criminal proceeding including the order dated 11.07.2016 passed by the learned Sub Divisional Judicial Magistrate, Jamshedpur in Complaint Case No. 850/2016, pending before the learned Sub Divisional Judicial Magistrate, Jamshedpur is, hereby, quashed. 10. Accordingly, these petitions stand allowed and disposed of. 11. Pending I.A. if any, stand disposed of. 12. Interim order, if any granted by this Court, stands vacated.