Delhi High Court - Orders
M/S Mso Infrastructure Pvt Ltd vs State Of Nct Delhi on 26 July, 2022
Author: Yogesh Khanna
Bench: Yogesh Khanna
$~31
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 1495/2021, CRL.M.A. 10378/2021
M/S MSO INFRASTRUCTURE PVT LTD
..... Petitioner
Through: Mr.Nikhil Malhotra, Ms.Shweta
Marathe, Advocates.
versus
STATE OF NCT DELHI
..... Respondent
Through: Mr.Amit Sahni, APP for State.
Mr.Mahendra Pratap, Advocate for
R2.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
ORDER
% 26.07.2022
1. This petition is filed for quashing of FIR No.162/2019 under Section 420/34 IPC registered at PS Uttam Nagar, Delhi and the proceedings emanating therefrom. It is alleged by the learned counsel for the petitioner on 29.12.2015 the agreement to sell was executed between the petitioners and respondent no.2 qua plot no.284, ad-measuring 198 sq.yds., Om Vihar, Uttam Nagar, New Delhi for a total consideration of Rs.1.40 crores. The petitioner received an amount of Rs.30.00 lacs and the balance amount of Rs.1.10 crores was to be paid on or before 11.04.2016 and thereafter the sale deed was to be executed. As per mutual understanding the respondent no.2 was to pay the remaining amount of consideration a little before the execution of the sale documents.
2. On 15.02.2016 after numerous requests, the respondent no.2 made a Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:28.07.2022 15:09 part payment of Rs.5.00 lacs. It is alleged despite requests, the respondent no.2 did not make the remaining payment and then on 09.05.2017 the petitioner filed a suit bearing CS No.470/2017 for declaration and permanent injunction seeking cancellation of agreement to sell dated 29.12.2015.
3. It is submitted by the learned counsel for the petitioner a bare perusal of the agreement would show the property was mortgaged and it was very much within the knowledge of the petitioner as is evident in clause 3 of Annexure-C, the agreement to sell, is as under:
―3. That the Seller assures the buyer that the above said property is free from all sorts of encumbrance such as mortgage, gifts, sale, litigation, attachment and proceedings of any nature. If proved otherwise, the Seller shall be liable and responsible for the same. Property is mortgage as Collective Security with Bank."
4. It is submitted the hand written portion of the agreement to sell dated 29.12.2015 was signed by both the parties, hence the respondent could not have said the petitioner had not disclosed about the mortgage.
5. However a bare perusal of the agreement would show the petitioner did not disclose the land was mortgaged for a loan of Rs.20.00 crore and even if Rs.1.40 crores would have been paid by the respondent, yet the property could not have been released by the Bank. Further the petitioner did not admit about the amount of Rs.35.00 lacs paid under the agreement to sell till date, if he had deposited with the bank or not.
6. Thus the learned MM was justified in issuing the summons since the entire payment of Rs.1.40 crores, even otherwise, would not have released the subject property from mortgage and admittedly this fact was never disclosed to the respondent, hence a prima facie case is certainly made out against the petitioners and thus there is no ground to set aside the impugned Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:28.07.2022 15:09 order dated 04.02.2019 passed by the learned MM.
7. The petition stands dismissed. Pending application(s), also stands disposed of.
YOGESH KHANNA, J.
JULY 26, 2022 DU Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:28.07.2022 15:09