Delhi High Court
Triveni Infrastructure ... vs State on 25 May, 2010
Author: P.K.Bhasin
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order delivered on: 25th May, 2010
+ CRL.M.A. 2794/2010 & CRL. M.A. 6126/2010
in
WP (CRL.) No.390/2010
# TRIVENI INFRASTRUCTURE DEVELOPMENT CO. LTD
..... Petitioner
!
Through:Dr. Abhishek Manu Singhvi, Mr. Harish
Malhotra,Mr. Arun Bhardwaj,Sr.Advocates
with Mr. Alok K. Aggarwal & Mr. Sanjay
S. Chhabra, Advocates
versus
$ STATE ..... Respondent
^ Through:Mr. Akshai Bipin, A.S.C. for the State
with ACP Sh. T.R. Mongia and Insp.
Vinod Gandhi from EOW
Mr.K.Bhardwaj, Mr. Shahid Azad, Ms.
Savita Tokas, Ms.Pooja Khanna,Mr. G.P.
Singh, Advocates for some complainants
Complainants/investors in person:
Mr. Avanish Sharma, Mr. Anil Arora, Mr.
RAhul Kalra, Ms. Aanchal Arora, Ms.
Charu Kumar, Mr. Jayashree Ramesh, Mr.
M. Ramesh, Mr. S. Sindhu, Mr. Sanjeev
Arya, Mr. Rohit Thakur, Mr. Ashish
Mangla, Mr. Sham, Mr. Sagar Sidana, Ms.
Samrity Sidana, Mr. Rahul Kalra, Mr.
Sameer Gupta, Mr. Anil Bhutani, Mr. Ajay
Yadav, Mr. Vishal Bansal, Mr. C.
Ramachandran, Mr. M. Hanumantha Rao,
Mr. Rajib Nayan Chaudhary, Mr.
Devender, Mr. Vijay Mishra, Mr. Narender
Dubey, Mr. Atul Rakheja, Ms. Pushpa Jain,
Mr. Sarve Shakti Maan Singh and Mr.
CRL.M.A. 2794/2010 & CRL. M.A. 6126/2010 in WP (CRL.) 390/2010 Page 1 of 11
Alok Modi: complainants/investors in
person
CORAM:
* HON'BLE MR. JUSTICE P.K.BHASIN
1. Whether Reporters of local papers may be allowed to see
the order?(No)
2. To be referred to the Reporter or not? (No)
3. Whether the order should be reported in the digest? (No)
ORDER
P.K.BHASIN,J:
The petitioner Company is into the business of development of real
estate. It claims that during the years 2006-07 it had invited bookings for
allotment of flats and plots in their projects in different cities after having
obtained necessary licences and other clearances from the concerned
Government departments. Thousands of persons invested money with the
petitioner Company in the hope of getting flats/plots. The petitioner
Company claims that due to global economic recession speculative
investors suddenly started cancelling their bookings and refund was being
claimed from the petitioner Company as they did not expect profit any
more from the bookings and in order to pressurize the Company to pay
them the money some of the investors converted the dispute of refund of
money, which was purely a civil dispute, into a criminal case of cheating
by lodging a complaint with the Economic Offences Wing(EOW) of the
Delhi Police on 24th December, 2008 and on the basis of that complaint
FIR 234/08 was registered.
2. During the investigation, the police vide order dated 20th November,
2009 attached immovable properties of the petitioner Company as well as
of its Group Companies. That order was passed during the pendency of
anticipatory bail application of three Directors of the petitioner Company in
which this Court had stayed their arrest.(That application is also being
disposed of today by a separate order). It is being claimed by the
petitioner that it never had any intentions to cheat any of its valuable
investors and, in fact, some speculative investors had started asking for
refund of their money because of global recession due to which they did
not expect profit any more from the bookings done by them with the
petitioner Company for the allotment of flats/plots. Since the attachment
order dated 20th November, 2009 had the impact of bringing the entire
business activities of the petitioner Company to a halt the present writ
petition was filed for quashing of that order of passed by the Assistant
Commissioner of Police(EOW).
3. During the pendency of the anticipatory bail application of the three
Directors of the petitioner Company they had offered to deposit in this
Court a sum of rupees thirty five lacs every month in order to show their
bona fides and they had agreed that that amount could be disbursed to the
investors who were not interested in getting flats/plots and only wanted
their money back and thereafter the Directors made payments of Rs.35 lacs
per month and thereafter the monthly deposit by them came to be increased
to rupees one crore and that amount also they have been depositing in this
Court. A sum of over two and a half crores of rupees already stands
deposited in this Court by the Directors of the petitioner Company.
4. The petitioner is for the time being claiming partial lifting of the
embargo on the sale of two pieces of land only as well defreezing of its
bank accounts, which have also been freezed by the police during the
pendency of this petition, to enable it to carry on its construction activities
and to honour its commitments with thousands of investors who are still
willing to have flats/plots from the petitioner Company despite the
registration of case of cheating against it at the instance of only a handful
of the investors.
5. As per the case of the respondent-State, upto 31st March, 2010, 380
investors had approached the police asking for refund of their money.
During the course of hearing of the present matter the petitioner has been
claiming that out of those 380 persons they had already settled with 233
investors and out of those 233 persons 85 persons been had been paid full
amount as per the settlements. That amount was claimed to be
Rs.4,62,14,182. To the remaining 148 investors total amount of
Rs.9,66,10,071/- was stated to be payable by petitioner Company and out
of that amount also it claims to have already disbursed a sum
Rs.3,26,70,656/- and the balance amount of Rs.6,39,39,415/- and it is being
claimed that as per the settlements the investors had agreed to take the
unpaid money in instalments and the petitioner would stick to the terms of
settlement. The amount payable to the remaining 147 investors, according
to the petitioners' was stated to be Rs.8,41,41,006/- calculated after
deducting 20% of the base price of flats/plots from the actual amounts paid
to the Company. That was according to the petitioner as per the term of the
buyer's agreements executed by the investors.
6. It was contended by the learned senior counsel appearing in the
matter on behalf of the petitioner Company that in order to make the
payments to the investors presently claiming back their money as well as to
those who might come forward in future also to have refund of their money
and also to enable the petitioner Company to go ahead with its regular
construction activities which had come to a complete halt because of the
impugned attachment order dated 20th November, 2009 it may be
permitted, as an interim relief only, to sell two pieces of land, one of which
was in Dharuhera and the other one in Ghaziabad, both of which are totally
unencumbered and the petitioner Company has clear title thereto. It was
submitted that petitioner Company has found two buyers who are willing to
purchase those properties and with whom separate MoUs have also been
executed but the same cannot be converted into a final deal because of the
impugned attachment order. It was submitted that whatever money the
petitioner Company would be receiving from the two prospective buyers,
towards the sale consideration which as per the tentative understanding
with the buyers was payable in instalments and sale deeds were to be
executed in phases depending upon the instalments paid by the buyers,
shall be deposited with this Court only for being disbursed to the investors
claiming back their money. Additionally, to secure the interests of the
investors, the petitioner Company would furnish security of immovable
properties of the value of about fifteen crores of rupees. It was also
contended that there were many investors who are still willing to continue
making payments to the petitioner Company towards the price of flats/
plots booked by them but the petitioner Company cannot accept money
from them because of the order dated 12th April,2010 by the respondent
during the pendency of this Writ Petition whereby now operation of all the
bank accounts of the petitioner Company has also been stopped and in that
way those investors are also suffering and that circumstance also justifies
giving of a direction by this Court defreezing the bank accounts also as an
interim relief. My attention was also drawn to the two MoUs entered into
between the petitioner Company and two intending buyers of its land in
Dharuhera and Ghaziabad. Details of which lands were given in those
MoUs which have been placed on the file of the anticipatory bail
application of the Directors of the Company and copies whereof had been
furnished to the respondent's counsel also. Although in support of the
submissions made in the impugned writ petition to the effect that the
respondent could not legally attach the immovable properties and freeze
bank accounts of the petitioner copies of many judgments of different High
Courts were also placed on record but during the course of hearing of the
applications for interim relief learned senior counsel Dr. Abhishek Manu
Singhvi submitted that since the petitioner Company and its Directors
having already decided to make refunds to the investors asking for their
money back he was not making any submissions on the merits of the
challenge to the impugned orders dated 30th November, 2009 and 12th
April,2010 for the present.
7. On behalf of the respondent-State it was contended by Shri Akshay
Bipin, learned Additional Standing Counsel, that till such time the claims
of all the investors who had approached the police for refund of their
money from the petitioner Company are satisfied the prayer for even partial
lifting of the embargo vide order dated 20th November , 2009 should not be
accepted and in case some relief is to be granted that should done keeping
in view the interests of aggrieved investors so that their money is
recovered and paid to them. Learned counsel appearing for some of the
investors and some investors who have been attending these proceedings
without any advocate had also submitted that no interim relief should be
granted to the petitioner till they get back their entire money paid by them
to the petitioner Company. Although at the same time, it was also stated
that the investors were not interested in sending the Directors of the
Company to jail in case they get back their money and that this Court must
ensure that while passing any order on the applications for interim reliefs.
8. There were some of the investors represented by their counsel who
had submitted that because of the present situation created by a handful of
investors they were suffering since they were not in a position to get flats
for which they were still ready to make payments to the petitioner
Company but the Company is not accepting the same as its bank accounts
have also been frozen by the police. It was contended on their behalf that
interests of the investors who were asking for refund of their money and
those who were still interested in getting flats since they would not now get
better offers in the real estate market, should be kept in mind and protected
by this Court while passing any orders on the prayers of the petitioner
Company for partial lifting of embargos which relief in fact, according to
this category of investors, should be granted.
9. Considering all the facts and circumstances, this Court is of the view
that the petitioner Company can be permitted to go ahead with finalization
of sale deal in respect of its land in Dharuheda and Ghaziabad, details
whereof have been furnished in the affidavit dated 29th April, 2010 of Shri
Sumit Mittal, one of the Directors of the petitioner Company and along
with which affidavit copies of the two MoUs with the prospective buyers of
those two pieces of land had also been annexed, this interim relief is being
granted to the petitioner Company keeping in view of the fact that its
Directors are depositing money in Court for being disbursed to the
investors claiming refund of their money and now they are being asked to
deposit in this Court a weekly payment of Rs.31,25,000/- while disposing
of their anticipatory bail application. The present interim relief shall,
however, be subject to the following conditions:
(i) The petitioner Company shall go ahead with the finalization of
the sale transactions with the two prospective buyers but shall not
execute sale deeds in their favour without prior permission of this
Court and in the event of the deals being finalized if sale deeds in
respect of some part of the land in question are to be executed on
receipt of part of the sale consideration as per the sale agreements to
be finally executed, the petitioner Company would be at liberty to
file an appropriate application informing the Court about the
payments received by it from the buyers and its utilization which, of
course, has to be utilized for disbursement of the money to the
investors, as has been volunteered also by the petitioner Company.
At that stage, the request of the petitioner Company for execution of
the sale deed(s) shall be considered. It is, however, clarified that the
petitioner is being permitted to go ahead with the sale deals only on
its representation made to this Court that the lands in question are
free from all encumbrances and the petitioner Company has a clear
title in the same and further that this permission being given to the
petitioner Company shall not be considered by the prospective
buyers to be a declaration of this Court about the clear title of the
petitioner Company in respect of those lands. It shall be the
responsibility of the buyers to satisfy themselves in respect of the
title of the lands which they propose to buy from the petitioner
Company in Dharuheda and Ghaziabad.
(ii) As also volunteered by the petitioner Company, it shall furnish
security of an immovable property to the extent of Rs. 15 crores to
the satisfaction of the Registrar General of this Court within two
weeks.
10. Since it was informed during the course of hearing of the present two
applications by the learned counsel for the State that in the bank accounts
of the petitioner Company frozen by the police there was hardly any money
lying deposited and a submission was also made on behalf of some of the
investors, who were still willing to make payments to the petitioner
Company, that those payments cannot be made to the petitioner Company
since all its accounts have been frozen and without those payments they
would not be able to get the flats booked by them which they still wanted
to get and were hopeful of getting the same despite the present criminal
proceedings going on against the petitioner, the petitioner is also permitted
to operate any of its two frozen bank accounts and it would inform the
investigating officer of those two banks and upon receipt of that
communication from the petitioner Company the respondent shall issue
appropriate directions to the concerned banks withdrawing the freeze order
within three days.
11. The petitioner Company as well as its Directors shall also honour all
the assurances given from time to time in the present petition as well as in
the anticipatory bail application no. 1641/09 in the affidavits as well as
during the course of hearing of the matters and in case of any breach
thereof, the reliefs being granted today shall be liable to be withdrawn.
Crl.M.A. 2794/2010 and Crl. M.A. 6126/2010 stand disposed of
accordingly.
May 25, 2010 P.K. BHASIN,J
sh
