M/S Zapp Hotels And Resorts Pvt. ... vs M/S Devi Aashirwad Resorts Pvt. ...
2021 Latest Caselaw 876 j&K

      HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                       AT JAMMU

                                                Reserved on:    04.08.2021
                                                Pronounced on : 13.08.2021


                                                CRM(M) No. 111/2021
                                                CrlM No. 348/2021
                                                c/w
                                                CRM(M) No. 112/2021
                                                CrlM No. 349/2021

                                                CRM(M) No. 115/2021
                                                CrlM No. 353/2021

                                                CRM(M) No. 116/2021
                                                CrlM No. 354/2021

                                                CRM(M) No. 117/2021
                                                CrlM No. 355/2021


M/s Zapp Hotels and resorts Pvt. Ltd. and              .....Appellant/Petitioner(s)
another


                               Through :- Mr. Narinder Kumar Attri, Advocate
                         v/s

M/s Devi Aashirwad resorts Pvt. Ltd and                         .....Respondent(s)
another

                               Through :- Mr. Aditya Gupta, Advocate

Coram:      HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                                JUDGMENT

1. In these five petitions, the common issue has been raised by the

petitioners, they were heard together and are being disposed of by this common

judgment. The facts in all the petitions are common, the same are being

extracted from the CRM (M) No.111/2021.

                                         2            CRM(M) Mo. 11/2021
                                                     a/w conneceted matters




2,           The petitioners have filed this petition under section 482 Cr.P.C

for quashing the complaint No. 78/2021 under section 138 of Negotiable

Instrument Act (for short the Act), titled, M/s Devi Ashirwad Resorts Pvt. Ltd.

Vs. M/s Zapp Hotels and Resorts Pvt. Ltd. and others, against the petitioners

as well as summoning order 12.01.2021 issued by the learned Judicial

Magistrate 1st Class (Munsiff), Jammu (hereinafter to be referred as the trial

court).

3. It is stated in the petition that the respondents filed a complaint

under section 138 of the Act, titled, M/s Devi Ashirwad Resorts Pvt. Ltd. Vs.

M/s Zapp Hotels and Resorts Pvt. Ltd. and others bearing case No. 78/2021 on

account of dishonour of the cheque No. 000021 dated 05.10.2020 before the

learned trail court for an amount of Rs. 13,84,533/- for discharge of the liability

of the monthly rent of the Hotel Devi Grand. The learned trial court issued the

process against the petitioners vide order dated 12.01.2021. It is stated that the

learned trial court simply reproduced the contents of the complaint and has not

assigned any reason while issuing the process against the petitioners. It is

further stated that in terms of paragraph-3 of the lease deed executed between

the parties, the petitioners had given advance cheques for 35 months and the

details of the cheques have been mentioned in the lease deed.

4. The petitioners had been running a business of hotel till the

outbreak of COVID-19 pandemic. However, the Union Government vide order

dated 24.03.2020 imposed complete lockdown and later, on 11.08.2020, the

maximum capacity of pilgrims visiting the Holy Shrine Mata Vaishno Devi

was capped at 5000 pilgrims per day till 30.09.2020 by the Government and

only 500 pilgrims outside the Union Territory of J&K per day were permitted 3 CRM(M) Mo. 11/2021 a/w conneceted matters

and this limit was raised to 15,000 per day up to 31.01.2021 and at present this

limit is 25,000 per day with effect from 01.02.2021. It is stated that the

petitioners have already responded to the notice but the respondents suppressed

the same from the trial court. It is stated that learned trial court has not taken

into consideration the legal aspect that the contract to do the business was on

the basis on the strength of license deed and that had become impossible on

account of outbreak of COVID-19 pandemic and the contract became void in

terms of section 56 of the Contract Act and further that section 43 of the

Negotiable Instrument Act provides that negotiable instrument drawn for a

consideration which fails, creates no obligation. It is further stated that

acknowledging the outbreak of COVID-19 and closure of the Hotel industry,

on 5th of December 2020, a meeting took place, in which the parties have

agreed to pay Rs 5.5 lacs per month from October 2020 till April 2021 and out

of which Rs 3.00 lacs per month is being paid and Rs. 2.5 lacs was agreed to be

paid in the last week of April 2021 and even the cheque of Rs. 12.50 lacs has

been received by respondent in advance.

5. Mr. Narinder Kumar Attri, learned counsel for the petitioners

vehemently argued that as the hotel business came to stand still and the hotel

could not be operated upon by the petitioners, so the consideration for which

the cheque was issued failed, as such, negotiable instrument ceases to have any

value. He further argued that because of the outbreak of the COVID-19

Pandemic, the contract has become void in terms of section 56 of the Contract

Act. Therefore, the impugned complaint as well order of summoning dated

12.01.2021 issued by the trial court is required to be quashed.

                                         4           CRM(M) Mo. 11/2021
                                                    a/w conneceted matters

6. Per contra, Mr. Aditiya Gupta, learned counsel for the respondents

submitted that the learned trial court has taken the cognizance as per the law

and assuming that there is any substance in the contentions of the learned

counsel for the petitioners, the same is matter of trial and cannot be

adjudicated upon in a petition under section 482 Cr.P.C.

7. Heard learned counsel for the parties and considered the matter.

8. A perusal of the complaint filed by the respondents reveals that

the cheque in question was issued by the petitioners in discharge of their

liability that accrued in terms of the licence deed placed on record by the

respondents before the trial court and the learned trial court after satisfying

itself that the complaint fulfills the requirements of sections 138 and 142 of the

Act, issued the process against the petitioners vide order dated 12.01.2021. A

perusal of the licence deed reveals that there is no stipulation in the licence

deed that provided for waiver of the rent in view of the un-foreseen event

resulting into the cessation of the business.

9. Be that as it may, without commenting upon the merits of the

case, the grounds urged by the petitioners, whether they have any substance or

not, can at the most amount to defense of the petitioners that the petitioners can

raise before the trial court during the trial. The Learned Magistrate while

issuing process has to form an opinion on the basis of material placed on record

as to whether there is sufficient ground for proceeding in the case. Detailed

reasons are not required to be furnished at this stage. I have perused the orders

impugned and there is no legal infirmity either in the complaints filed by the

respondents or in the order by virtue of which the process has been issued by

the trial Court.

                                        5            CRM(M) Mo. 11/2021
                                                    a/w conneceted matters

10. In view of the above, there is no merit in this petition, the same is

dismissed along with connected CrlMs. The other connected petitions shall

also stand dismissed on the same terms as stated in CRM (M) No. 111/2021

hereinabove.

11. The five complaints are between the same parties, as such, they

are required to be tried by one Court. Accordingly, it is directed that all the

complaints be tried by the learned Forest Magistrate (JMIC) Jammu. The

complaints impugned in these petitions pending before the Court of Judicial

Magistrate 1st Class (Munsiff), Jammu, Jammu be transferred to Forest

Magistrate (JMIC) Jammu forthwith.

12. Copy of this order be placed on the record of each file.

(Rajnesh Oswal) Judge Jammu 13.08.2021 Karam Chand/Secy.

                         Whether the order is speaking:         Yes/No
                         Whether the order is reportable:       Yes/No