Delhi High Court - Orders
Sk Modi vs Narendra Kumar Jaipuria & Ors on 13 September, 2022
Author: Sachin Datta
Bench: Sachin Datta
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CONT.CAS(C) 722/2012 and CM APPLs.150/2014, 7528/2014,
10768/2014
SK MODI ..... Petitioner
Through: Mr. Ajeet Shukla and Mr. Tarang
Gupta, Advs.
versus
NARENDRA KUMAR JAIPURIA & ORS ..... Respondents
Through: Mr. Hrishikesh Baruah, Mr. Joy
Banerjee and Mr. Kumar Kshitij,
Advs.
CORAM:
HON'BLE MR. JUSTICE SACHIN DATTA
ORDER
% 13.09.2022 CM APPL.18418/2012 (Exemption) Allowed, subject to all just exceptions.
Application stands disposed of.
CONT.CAS(C) 722/2012
1. The issue involved in the present petition has been set out in the order dated 01.02.2013, the relevant portion of which is as under:
"3. According to the Petitioner, the Scheme sanctioned by the Company Court, is at page 129 of the paper book. In terms thereof, with the payment of second instalment by the company, the Respondents/creditors were to withdraw their complaints under Section 138 of the Negotiable Instruments Act, 1881 („NI Act‟) „filed or threatened against Royal Airways Limited, its promoter, directors, officers and executives (whether present or past)‟.
4. It is stated that the said Scheme was approved by an order dated Signature Not Verified Digitally Signed By:ANU KAPOOR Signing Date:15.09.2022 18:33:01 15th July 2005 of the Company Court. In para 56 of that order it was observed that till such time the entire payment was not made, the complainant as well as the company would apply to the concerned criminal court for adjournment of the NI Act proceedings. Further, it was noted in para 56 of the said order that "it was decided that the withdrawal of such complaints would be simultaneously with the payment of second instalment amount."
5. Malanpur Steel Limited („MSL‟), one of the creditors, sought a review of the order dated 15th July 2005 by filing Review Petition No. 1130 of 2005. The said review petition was dismissed by the Company Court by an order dated 14th July 2010. In the same order, a separate order was passed in para 35 in Company Application No. 634 of 2009, whereby it was directed that "as per the sanctioned Scheme and once the entire payment is made," MSL "shall withdraw the proceedings under Section 138 of the NI Act which were filed by it alleging non-payment of dues in the form of dishonour of the cheques."
6. MSL filed Company Appeal No. 28 of 2010 against the orders dated 15th July 2005 and 14th July 2010 passed by the Company Court. The said appeal was disposed of by the Division Bench by its decision dated 9th November 2012 holding in para 22 of the said judgment that the observations of the Company Court "for stay or proceedings of quashing of proceedings under Section 138 of NI Act"
cannot be sustained. The Division Bench held that the question whether the accused would be entitled to seek quashing of the criminal proceedings will be examined by the courts concerned.
7. It appears that the entire amount due has been deposited in two instalments by the Petitioner in this Court. For some reason, however, the Respondents have not yet withdrawn the said amount. Since the Respondents did not withdraw the complaint under the NI Act, the Petitioner initially filed Contempt Case (C) No. 219 of 2012 in this Court. At the first hearing of the said petition on 28th March 2012 an order was passed by the Court holding that appropriate course for the Petitioner was to approach "the concerned courts, where the aforesaid criminal proceedings are pending to seek appropriate reliefs by placing reliance on the aforesaid decisions of the Company Court." At that stage, the appeals filed by the Respondents before the Division Bench were pending.
Signature Not Verified Digitally Signed By:ANU KAPOOR Signing Date:15.09.2022 18:33:018. The Petitioner approached the Court of the Metropolitan Magistrate (MM), Calcutta before whom the criminal complaint under Section 138 of the NI Act filed by the Respondents is pending. In an order dated 11th October 2012 the MM observed that despite the complainants not denying that the entire payment had been made by the Petitioners in terms of the sanctioned Scheme, the complainants were not prepared to withdraw the complaints.
9. Mr. Nigam relies on a decision of the Supreme Court in Tayabbhai M. Bagasarwalla v. Hind Rubber Industries Pvt. Ltd. (1997) 3 SCC 443 and submits that as long as the orders dated 15 th July 2005 and 14th July 2010 of the Company Court approving the Scheme and issuing specific directions to the complainants to withdraw the complaints were not set aside by the Division Bench in an appeal, they had to be obeyed. Mr. Nigam also refers in particular to the specific directions issued by the Company Court in para 35 of its order dated 14th July 2010. Mr. Nigam maintains that the Division Bench in its order dated 9th November 2012 has not set aside the said direction. It was, therefore, incumbent on the Respondents to have withdrawn the NI Act complaints."
2. Learned counsel for the petitioner draws attention to the order dated 04.05.2015, passed by the Supreme Court whereby interim orders have been passed qua the complaint filed by the respondent under Section 138 of Negotiable Instruments Act.
3. List for final disposal on 24.01.2023.
4. In the meantime, the parties are directed to file their respective synopsis not exceeding five pages, also referring to the judgments they seek to rely upon.
SACHIN DATTA, J SEPTEMBER 13, 2022/cl Signature Not Verified Digitally Signed By:ANU KAPOOR Signing Date:15.09.2022 18:33:01