CRM-M No.32091 of 2008 (O&M) -1-
IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH
CRM-M No.32091 of 2008 (O&M)
Date of Decision: 21.8.2009
Tushar Kumar
..Petitioner.
Vs.
State of Haryana and another
..Respondents.
CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
Present : Mr.R.S.Cheema, Sr.Advocate with
Ms.Tanu Bedi, Advocate for the petitioner.
Mr.Narender Sura, AAG Haryana for the State/respondent.
Mr.Harbhagwan Singh, Sr.Advocate with
Mr.Amit K.Singh, Advocate for respondent No.2.
RAKESH KUMAR JAIN, J.
This is a petition under Section 438 Cr.P.C. for grant of
anticipatory bail in case registered vide FIR No.141 dated 6.10.2008 under
Sections 406/420/506/120-B IPC at Police Station DLF Phase-I, Gurgaon.
The aforesaid FIR has been registered on the complaint of
H.S.Lamba, Managing Director of M/s Sneh Developers Pvt. Ltd. Briefly,
the allegations contained in the FIR are that the petitioner, who is managing
Director of GTM Builders and Promoters Pvt. Ltd., approached the
complainant for the construction of multi-storeyed building on an area of
about 1 acre purchased by him at village Gowal Pahari, Gurgaon. The
building was to be known as Tower No.11. The petitioner had assured the
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complainant company that his company is a cash rich company and will pay
the running bills of the construction well within time. On this assurance, the
complainant company entered into an agreement with the petitioner on
10.3.2005 and started construction of the building. It was agreed upon
between the parties that the petitioner shall supply cement and steel which
shall be adjusted in the cost of the bills. After a few months of the inception
of the construction, the petitioner delayed the payment of running bills on
the ground that funds received in the proposed building have been blocked
in another land purchased by him. He requested the complainant to carry on
the construction work and on his request and assurance, funds were
arranged from the market on a high rate of interest and invested the same in
purchasing the machinaries and building construction material. Since there
was a dispute between the parties with regard to construction and delayed
payment of money, an addendum agreement was executed on 28.9.2006 as
per which the company owned by the petitioner, assured the complainant
that they would make the payment within 10 days on the submission of the
bills. But despite that the bills were not paid in time, however, a fresh
memorandum of understanding was executed on 25.3.2008 as per which the
petitioner had agreed to pay Rs.1.25 Crores for the escalation charges in the
construction material for structure raised as on 25.3.2008 and also agreed to
pay the running bills in time with penalty for delay and the entire building
work was scheduled to be completed by December 2008. It is also alleged
that as soon as the complainant Company completed the structure of 96 flats
of 17 floor of the multi-storeyed tower and were completing the finishing
work of the flats at great speed, the petitioner showed his true colours and
stopped making payment of running bills. Last bill dated 17.7.2008 of
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Rs.42.62 lacs was not paid but only Rs.5 lacs was paid for making payment
of wages to the labour. The total outstanding as on 31.8.2008 against GTM
Company is 2.88 Crores. It is also alleged that the petitioner had threatened
the complainant and had also bribed his employees.
Before coming to this Court, the petitioner had applied for
anticipatory bail before the Court below which was dismissed by the
Additional Sessions Judge, Fast Track Court, Gurgaon on 11.10.2008.
Learned counsel for the petitioner has vehemently argued that
the dispute between the parties is essentially of a civil nature which is borne
out from the documents itself, therefore, custodial interrogation is not
required. It is submitted that on 10.3.2005 agreement (Annexure P-2) was
entered into between the parties as per which the petitioner had given the
job of construction to the complainant on turn-key basis. The date of
commencement of work agreed between the parties was 10.3.2005 and the
date of completion was 31.10.2006. Since the work of contract should have
been completed before the stipulated date and was not completed, therefore,
vide (Annexure P-3) registered notice was given on 31.7.2006 calling upon
the complainant to remedy the breach within a period of 15 days failing
which the agreement Annexure P-2 shall stand terminated and the balance
work shall be completed through other agency at the risk and cost of the
complainant. Thereafter, addendum to the agreement dated 10.3.2005
(Annexure P-2) was executed on 28.9.2006 (Annexure P-4) in which it was
agreed by the complainant that they would furnish bank guarantee in favour
of the petitioner for a sum of Rs.50 lacs at the time of signing its
performance of the contract and shall issue five cheques of Rs.10 lacs each
without mentioning the date, in favour of the petitioner. It was also provided
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in the addendum that the petitioner shall have right of lien on all
machinaries and equipments deployed or to be deployed at site under the
completion of GTM Residency Tower in all respects. If the complainant
commits any default in performance of the contract then the petitioner shall
have the right of lawful possession of the said machinery and equipment
and shall also have a right to dispose them off for the purpose of realisation
of damages. It is further submitted that despite the addendum, the
complainant could not fulfill the commitment, therefore, vide letter dated
5.3.2008 (Annexure P-5) the petitioner exercised his right of lien on all the
machinaries and equipments available at the site to take possession and also
declared that agreement dated 10.3.2005 (Annexure P-2) and addendum
dated 28.9.2006 (Annexure P-4) stand cancelled. It is further submitted that
on 10.3.2008, the petitioner had to issue legal notice (Annexure P-6) to the
complainant on the ground that all the five cheques of Rs.10 lacs were
dishonoured on the ground of `Insufficiency of funds’ but due to some
amicable settlement between the parties, the said legal notice (Annexure P-
6) was withdrawn on 10.3.2008 vide letter (Annexure P-7) and thereafter on
25.3.2008 memorandum of understanding (Annexure P-8) was also
executed between the parties according to which construction work was to
be finished by the complainant by 31.3.2008 positively. Since the work was
not completed, therefore, the petitioner sent a letter of termination of
contract on 29.8.2008 (Annexure P-10) and on 29.8.2008 he also made a
complaint to the Commissioner of Police, Gurgaon against the complainant
that they are threatening the employees of the petitioner. On 20.9.2008, the
petitioner also informed the complainant that since there is clause No.16
with regard to resolving the dispute through Arbitrator, therefore, they were
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requested to appoint a sole arbitrator. In the present case, the complainant
filed a reply to the bail application to which the petitioner had also filed a
rejoinder. Besides that the complainant filed an application under Section
340 Cr.P.C.
In response to the arguments raised by the counsel for the
petitioner, counsel for the complainant has vehemently argued that offence
under Section 420 IPC is apparent on the face of it as from the beginning
the complainant was allured by the petitioner for the construction of flats by
assuring him that it is a cash rich company and all the payments shall be
made in time. It is further submitted that Section 406 IPC is also made out
on the basis of the allegations made in the FIR. Since the complainant has
threatened by the petitioner, therefore, Section 506 IPC is also made out. It
is further submitted by the counsel for the complainant that an amount of
Rs.2.92 Crores is still due towards the petitioner, which has not been paid so
far. Learned counsel for the complainant has further argued that in view of
the decision of the Apex Court in the case of Adri Dharan Das Vs. State
of West Bengal (2005) 4 SCC 303, the petitioner is not entitled to
anticipatory bail.
In response to this argument, counsel for the petitioner has
relied upon decision of the Apex Court in Gurbaksh Singh Sibbia etc. Vs.
The State of Punjab AIR 1980 SC 1632 and Savitri Agarwal & Othres
Vs. State of Maharashtra and another 2009(4) Recent Apex Judgments
516. Counsel for the petitioner has further submitted that in terms of the
order passed by this Court dated 11.12.2008, the petitioner has already
joined the investigation. This fact is not disputed by the counsel for the
State.
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I have given my thoughtful consideration to the respective
contentions raised by the counsel for the parties and have perused the record
with their assistance.
The resume of the facts originated from the documents on
record shows that it is a business dispute between the parties in which
agreement, addendum to agreement and even memorandum of
understanding have been executed for the purpose of execution of
construction work, which has been delayed for one reason or the other. It is
also brought to the notice of the Court that after a request made by the
petitioner to the complainant for the appointment of arbitrator (Annexure P-
12), a petition has already been filed before the Hon’ble Delhi High Court
for the purpose of appointment of an Arbitrator on 29.5.2009 in which
notice of motion has been issued for 11.9.2009. This Court has found that it
is a dispute with regard to accounting and interpretation of the relevant
provisions of the agreement between the parties because the petitioner is
claiming lien of the plot and machinery on the basis of Clause 3 of the
addendum to the agreement dated 10.3.2005 (Annexure P-2) and the
complainant is claiming escalation in the cost price on the basis of
memorandum of understanding (Annexure P-8) dated 25.3.2008. It is
worthwhile to mention that both addendum (Annexure P-4) and
memorandum of understanding (Annexure P-8) are the part of the main
agreement (Annexure P-2). Since the entire dispute is based upon
documents which according to the petitioner, have already been submitted
to the Investigating Officer and that the petitioner has joined the
investigation, therefore, order dated 11.12.2008 is made absolute. It is
however, directed that petitioner shall join the investigation as and when
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called for. He shall also abide by the provisions of Section 438(2) Cr.P.C.
The petition is disposed of.
(Rakesh Kumar Jain)
21.8.2009 Judge
Meenu