Delhi District Court
Aniel Kuumar Saha vs Paramount Products Pvt. Ltd on 10 March, 2021
IN THE COURT OF SHRI ANUJ AGRAWAL, ADDITIONAL SESSIONS
JUDGE5, SOUTH EAST DISTRICT, SAKET COURTS, NEW DELHI
REVISION PETITION NO. 205 of 2020
IN THE MATTER OF:
1. Aniel Kuumar Saha,
S/o late Sh. A K Saha,
G22, Sector27,
Noida201301, Uttar Pradesh
2. Ashok Kumar Sirohi,
S/o Sh Dharam Singh Sirohi,
E13, Sector 30, Noida,
Uttar Pradesh 201301 .......Revisionists
Versus
Paramount Products Pvt. Ltd.
Through its Authorized Representative,
A55, Okhla Industrial Area, Phase2,
New Delhi110020 ........Respondent
Instituted on : 21.09.2020
Reserved on : Not reserved
Pronounced on : 10.03.2021
JUDGMENT
1. By way of the instant judgment, I propose to dispose of instant revision petition filed on behalf of revisionists Aniel Kuumar Saha and Ashok Kumar Sirohi impugning the common order dated Crl Rev. No. 205 of 2020 Aniel Kuumar Saha & Anr Vs Paramount Products Pvt Ltd Page No. 1 of 11 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.03.10 14:03:02 +0530 13.07.2020 whereby three applications i.e. two applications preferred by the respondent (one application for withdrawal of all three complaint cases and another application u/s 421 r/w section 431 Cr.P.C. for recovery of settlement amount as fine) were allowed and one application of revisionists (for adjourning all three complaint cases sinedie and stay of all further proceedings) was dismissed being infructous in all three Complaint Case bearing No.s 8816/2018, 8823/2018 & 122/2019, all titled as M/s Paramount Products Pvt Ltd Vs M/s Saha Infratech Pvt Ltd. & Ors, by Ld. Metropolitan Magistrate09, South East District, Saket Court, New Delhi.
2. Brief facts may be taken note of: Respondent approached M/s Saha Infratech Pvt Ltd for purchase of an under construction flat bearing No.s C3102, C3202 & B3102 from the project of the said company namely AMADEUS and thereafter parties executed a Memorandum of Understanding (MoU) dated 06.07.2015. The said MoU was signed by Mr Ashok Kumar Sirohi (revisionist no.2) on behalf of M/s Saha Infratech Pvt Ltd. Thereafter, respondent paid an amount of Rs.2 crores. Further, as per said MoU, it was agreed that on the expiry of period/validity of MoU, the company had the right to trigger a buyback option against payment of Rs.2 crores but also an additional amount of Rs.2 crores as premium for the exercise of buyback option. As per revisionists, company conveyed its intention to buyback the flats allotted to respondent and in pursuance thereof, the company issued three cheques bearing no.040360, 040361 & 045367 for Rs.2 crores, Rs.2 crores and Rs.98 lakhs respectively, all dated 31.05.2018 and upon presentation, said cheques were dishonoured and thereafter, Crl Rev. No. 205 of 2020 Aniel Kuumar Saha & Anr Vs Paramount Products Pvt Ltd Page No. 2 of 11 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.03.10 14:04:06 +0530 respondent issued demand notices all dated 23.08.2018. On failure of revisionists in making payment against dishonoured cheques, respondent filed three separate criminal complaints against both the revisionists being Director of M/s Saha Infratech Pvt Ltd and against M/s Saha Infratech Pvt Ltd before concerned Ld Magistrate for dishonour of cheques. All the three said complain cases are for dishonour of said cheques.
3. On finding of prima facie case, revisionists along with their company were summoned for facing trial for offence under section 138 NI Act by Ld Magistrate.
4. Record reveals that on request of parties, all three aforesaid complaint cases were referred to Mediation Centre and vide settlement dated 22.10.2019 arrived at Mediation Cell, matter got settled between the parties. As per the terms of settlement, revisionists agreed to make payment of Rs.7.15 crores by way of post dated cheques to the respondent and 12 post dated cheques as per following details were also handed over to the respondent on behalf of revisionists.
Amount Cheque No. Dated
60,00,000/ 021733 31.01.2020
60,00,000/ 021734 28.02.2020
60,00,000/ 021735 31.03.2020
60,00,000/ 021736 30.04.2020
60,00,000/ 021737 31.05.2020
60,00,000/ 021738 30.06.2020
60,00,000/ 021739 31.07.2020
60,00,000/ 021740 31.08.2020
60,00,000/ 021741 30.09.2020
60,00,000/ 021742 31.10.2020
60,00,000/ 021743 30.11.2020
55,00,000/ 021744 31.12.2020
Crl Rev. No. 205 of 2020 Aniel Kuumar Saha & Anr Vs Paramount Products Pvt Ltd Page No. 3 of 11
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2021.03.10
14:04:16 +0530
5. It was further recorded in the said settlement that the respondent shall make necessary statement before concerned Referral Court for compounding of offence in favour of revisionists on 02.11.2019, whereafter the matter may be disposed off.
6. Record reveals that none of the revisionist was present on 02.11.2019 before Ld Magistrate and an application moved by their counsel, they were exempted from their personal appearance with directions to appear on the next date of hearing i.e. 05.03.2020. Ld Magistrate also fixed the matter for verification of the payments.
7. Further, on 05.03.2020, two applications were filed before Ld Trial Court in aforesaid three complaint cases by respondent, one for withdrawal of pending complaints and another under section 421 r/w 431 Cr.P.C. for recovery of settlement amount as fine. Simultaneously, in view of order dated 28.02.2020 passed by National Company Law Tribunal, whereby an Insolvency Resolution Professional (IRP) was appointed under Insolvency and Bankruptcy Code, 2016 (IBC) on a petition moved under section 7 of said Code against M/s Saha Infratech Pvt Ltd., revisionist filed an application seeking sinedie adjournment of all three complaint cases in view of section 14 of IBC before Ld Magistrate.
8. Vide common order dated 13.07.2020 i.e. the impugned order, all the said applications stood disposed off by Ld Magistrate. The relevant observations of Ld Magistrate are being reproduced for the sake of convenience : " 7. Perusal of file reveals that these three cases have been settled between the parties in mediation center on 22.10.2019 Crl Rev. No. 205 of 2020 Aniel Kuumar Saha & Anr Vs Paramount Products Pvt Ltd Page No. 4 of 11 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.03.10 14:04:27 +0530 for a sum of Rs.7.15 crores payable in 12 installments as per schedule mentioned therein. The accused persons have issued 12 PDCs to the complainant to make the payment as per settlement.
8. Section 257 Cr.PC provides that the complainant at any time before final order can be permitted to withdraw his complaint against the accused/ accused persons. Since the present case has been settled between the parties and there is no illegality in said settlement dated 22.10.2019, therefore, the court permits the complainant to withdraw these three complaint cases u/s 138 NI Act. Thus, application to withdraw these cases moved on behalf of complainant is allowed.
9. In the case of "Dayawati Vs Yogesh Kumar Gosain" Crl. Ref. No.1/2016 decided on 17.10.2017, the Hon'ble High Court of Delhi has observed as follows:
"106. In having so proceeded, there is a satisfaction of the voluntariness and legality of the terms of the settlement of the court and acceptance of the terms thereof as well as a specific order in terms thereof. Consequently, the amount payable under the settlement, would become an amount payable under an order of the criminal court..."
The purpose for recording of statement of the parties in the court after settlement in the mediation center, is only as to find out whether there is a any illegality in the mediation settlement or not; or the settlement has been entered into voluntarily or not.
10. Clause no.6 and 7 of mediation settlement dated 22.10.2019 read as follows:
"6. In the event of any default in making the payment of the installments as agreed above, the first party will be at liberty to initiate action as per law laid down in Crl. Ref. No.1/2016 titled Dayawati Vs Yogesh Kumar Gossain as well as to take any civil/ criminal penal against the second party, as per law.
7. It is clarified that in the event accused no.1 ceases to exist, is would up/ liquidated/ undergoes any resolution process and/ or moratorium imposed by law etc, accused no.2 and 3 expressly give their undertaking to meet the obligations on the second party from this settlement jointly and severally."
11. These three cases have been settled between the parties in mediation center on 22.10.2019. Accused persons did not appear in the court on 02.11.2019 for making statement in the court with regard to mediation settlement. Even prior to referring these cases in mediation center accused no.2 and 3 have appeared only once in the court for furnishing bail bonds in theses case.
12. These three complaint cases have been settled by the Crl Rev. No. 205 of 2020 Aniel Kuumar Saha & Anr Vs Paramount Products Pvt Ltd Page No. 5 of 11 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.03.10 14:04:37 +0530 accused persons in the presence of their Ld. Advocate before, Ld. Judge, Incharge Mediation Centre, Saket Courts. There is no grievance of the accused persons that they have been forced to settle these three cases or there is any illegally in the said settlement dated 22.10.2019. Accused no.2 and 3 have voluntarily settled the present case and issued 12 PDCs in favour of the complainant to make the payment as per settlement. Complainant has already filed application for withdrawal of three cases in view of settlement in mediation center and same has been allowed by this court. Therefore, the proceedings u/s 421 read with 431 Cr.PC for recovery of settlement amount as fine cannot be deferred mere on the technical ground that no statement of parties accepting the settlement in the mediation center, has not been recorded in the court.
13. Accused no.2 and 3 were well aware about the initiation of insolvency proceedings against accused no.1 company at the time of settlement. Therefore, they have expressly given their undertaking as mentioned in clause 7 of mediation settlement dated 22.10.2019 that they would meet the obligation on the accused company from this settlement agreement jointly or severely. Now they cannot run away from their undertaking. They cannot be allowed to abuse the process of law under the garb of section 14 of Insolvency and Bankruptcy Code 2016. 14 ...........
15.............
16. Ld. Defence Counsel has prayed to adjourn the proceedings of these three cases sine die and relied upon various orders passed by Hon'ble Supreme Court of India whereby stay has been granted in similar cases. The facts of those cases relied upon by Ld. Defence counsel are not put before this court. Hon'ble Supreme Court of India has granted stay in particular cases which cannot be applied in general to all such cases. Each criminal case has to be decided to its own facts. Since the application for withdrawal of present complaint has been allowed, therefore, the application to adjourn these three cases sine die, has become infructuous and thus stands dismissed. All three applications disposed off accordingly."
9. The revisionists are aggrieved with the said order and has assailed the same on various grounds which can be summarized as under: Crl Rev. No. 205 of 2020 Aniel Kuumar Saha & Anr Vs Paramount Products Pvt Ltd Page No. 6 of 11 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.03.10 14:04:48 +0530
(i) That Ld Trial Court passed the common impugned order contrary to the settled propositions of law and without appreciating the material on record;
(ii) That Ld Trial Court failed to appreciate the fact that nature of offences in a cases arising out of section 138 NI Act are more in the nature of civil wrong rather than that of a criminal offence as the main concern of the complainant is with respect to recovery of dues rather than any punitive action;
(iii) That Ld Trial Court failed to appreciate that the judgment in 'Dayawati Vs Yogesh Kumar Gosain' Crl. Ref. No.1/2016, is an authoritative pronouncement with respect to procedure to be followed after execution of settlement agreement in matters arising out under section 138 NI Act and the compliance of the same is mandatory;
(iv) That Ld Trial Court failed to appreciate that in absence of statement of parties, settlement agreement could not be enforced against the parties and at most, noncompliance of terms of settlement agreement would result in the matter being heard on merits and being disposed of as per law;
(v) That Ld Trial Court has come to a wrong conclusion that the revisionist was aware of Crl Rev. No. 205 of 2020 Aniel Kuumar Saha & Anr Vs Paramount Products Pvt Ltd Page No. 7 of 11 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.03.10 14:04:58 +0530 insolvency proceedings at the time of execution of settlement agreement and on the basis of said false assumption, proceeded to dismiss the application of revisionist with regard to sinedie adjourning the complaint cases;
(vi) That Ld Trial Court failed to take note and appreciate the conduct of respondent who backed out of the settlement by not withdrawing the complaint cases on 02.11.2019;
10. Per contra, Ld counsel for respondent has vehemently argued that there is no infirmity in the impugned order and the present petition is liable to be dismissed being devoid of any merit.
11. I have heard rival contentions and perused the record.
12. Perusal of record reveals that revisionists have voluntarily entered into a mediation settlement with respondent, whereupon, Ld. Trial Court acting upon said settlement, permitted the complainant /respondent to withdraw the pending complaints against the revisionists leading to their acquittal.
13. Revisionists are neither disputing the factum of settlement arrived at mediation, its legality nor they are questioning their acquittal. However, they seemed to be aggrieved by the steps initiated by Ld. Trial Court for recovery of the settlement amount.
Crl Rev. No. 205 of 2020 Aniel Kuumar Saha & Anr Vs Paramount Products Pvt Ltd Page No. 8 of 11
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2021.03.10
14:05:09 +0530
14. It is not the case of revisionists that they were coerced to enter into said settlement or the said settlement was an involuntary one. Rather, a careful perusal of said settlement reveals that said settlement has not only been signed by one of the revisionists i.e. Aniel Kuumar Saha but also the factum of said settlement being arrived voluntarily between parties on their own free will and without any force, pressure and coercion have also been recorded in the said settlement. The contents of settlement were also explained to both the parties including the revisionist as recorded in said settlement. Further, not only a valid settlement was entered into by revisionist with respondent but the revisionists had also acted upon said settlement by handing over twelve PDCs for making payments in terms of said settlement.
15. Further, on the day fixed for recording statement of parties before Ld Magistrate i.e. 02.11.2019, it were revisionists who had absented themselves for the purpose of recording of statement whereas AR of respondent was very much present on that day. It is also evident that on said day, also no grievance was raised by Ld counsel for revisionists regarding the legality or voluntariness of said settlement.
16. Therefore, in my considered view, as observed rightly by Ld Trial Court at paragraph 9 of the impugned order, while referring to the judgment of Dayawati (supra), the purpose of recording of statement of parties is only to ensure that there is no illegality in the settlement and to ensure that same has been arrived by parties of their own free will.
Crl Rev. No. 205 of 2020 Aniel Kuumar Saha & Anr Vs Paramount Products Pvt Ltd Page No. 9 of 11
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2021.03.10
14:05:18 +0530
17. As mentioned above, it is not the case of revisionists that the settlement was not legal or they were coerced to enter into it. Therefore, seen in aforesaid backdrop, the nonrecording of ratifying statement, would hardly be of any consequences in the instant case. Holding otherwise would, in my considered view, render the salutatory directions of Hon'ble Delhi High Court in said judgment, nugatory.
18. Admittedly, insolvency professional has already been appointed by NCLT vide order dated 28.02.2020 in a petition filed against M/s Saha Infratech under the IBC. The Apex Court recently in a case P Mohanraj & Ors Vs M/s Shah Brothers Ispat Pvt Ltd, Civil Appeal No.10355 of 2018, dated 01.03.2021, wherein it has been held as under : "Since the corporate debtor would be covered by the moratorium provision contained in Section 14 of the IBC, by which continuation of Section 138/141 proceedings against the corporate debtor and initiation of Section 138/141 proceedings against the said debtor during the corporate insolvency resolution process are interdicted, what is stated in paragraphs 51 and 59 in Aneeta Hada (supra) would then become applicable. The legal impediment contained in Section 14 of the IBC would make it impossible for such proceeding to continue or be instituted against the corporate debtor. Thus, for the period of moratorium, since no Section 138/141 proceeding can continue or be initiated against the corporate debtor because of a statutory bar, such proceedings can be initiated or continued against the persons mentioned in Section 141(1) and (2) of the Negotiable Instruments Act. This being the case, it is clear that the moratorium provision contained in Section 14 of the IBC would apply only to the corporate debtor, the natural persons mentioned in Section 141 continuing to be statutorily liable under Chapter XVII of the Negotiable Instruments Act."
19. Therefore, in view of the law laid down in aforesaid case, the moratorium in terms of section 14 of IBC comes into picture only Crl Rev. No. 205 of 2020 Aniel Kuumar Saha & Anr Vs Paramount Products Pvt Ltd Page No. 10 of 11 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.03.10 14:05:26 +0530 against M/s Saha Infratech i.e. corporate Director, however the proceedings against both the revisionists who are the Directors, are liable to be continued. Therefore, there is no infirmity in impugned order whereby it was observed by Ld Magistrate that there is no impediment for initiating proceedings under section 421 read with 431 Cr.P.C. against accused no. 2 & 3 for recovery of the amount as per settlement dated 22.10.2019 arrived in mediation proceedings. Further, the directions of Ld Trial Court, thereby allowing application of respondent to initiate proceedings against the revisionists for recovery of settlement amount on filing of list of their movable and immovable property are also valid in law, having being passed in terms of directions of Hon'ble High Court in Dayawati (supra) judgment.
20. One who seeks equity must do equity. In the instant case, on one hand, the revisionists had entered into a valid settlement on their own free will and on the other hand, are desperately trying to wriggle out from the consequences of said settlement after having failed to honour their commitment of payment as per the said settlement. The present petition is devoid of any merit, hence, liable to be dismissed. Ordered accordingly.
21. TCR be sent back along with copy of this judgment to Ld. Trial court.
22. Revision file be consigned to Record Room after due compliance. ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2021.03.10 14:05:35 +0530 Announced in the open (ANUJ AGRAWAL) Court on 10th March, 2021 Additional Sessions Judge05, South East, Saket Courts, New Delhi Crl Rev. No. 205 of 2020 Aniel Kuumar Saha & Anr Vs Paramount Products Pvt Ltd Page No. 11 of 11