Prachi Vijaykumar Trivedi And ANR. v. The State Of Maharashtra And ORS.
Mandira Salgaonkar 1/37 Judgment WP-305-21 (Group).doc Mandira Salgaonkar Date: 2021.02.12 17:03:46 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.305 OF 2021 Prachi Vijaykumar Trivedi Adult Aged 36 Years Vijaykumar Suryadutta Trivedi Adult Aged 69 Years Indian Inhabitant, Both the Parties, Presently residing at Flat No.603, Building No.43, Evershine Millennium Paradise, Thakur Village, Kandivali (E), Mumbai - 400101 .. Petitioners
2/37 Judgment WP-305-21 (Group).doc CRIMINAL WRIT PETITION NO.324 OF 2021 M Radhakrishnan Adult Aged 77 Years Sudha Radhakrishnan Adult Aged 70 Years Both are Indian Inhabitants, Residing at Flat No.203, Sapphire, Nirmal Lifestyle, LBS Marg, Mulund (W), Mumbai .. Petitioners Subhash Road, Mumbai 400080
3/37 Judgment WP-305-21 (Group).doc a Ltd Company Registered under Companies Act, 1956, 3rd Floor, Multiplex Building, Nirmal Lifestyle, L.B.S.Marg, Mulund West, Mumbai 400080 Occupation :- Business, Aged:- not known, Indian Inhabitant Occupation :- Business CRIMINAL WRIT PETITION NO.323 OF 2021 Sandeep Ravindranath Nair Adult Aged 39 Years Surya Sasidharan Adult Aged 34 Years Indian Inhabitants, Both the Parties residing at A/701, Dheeraj Garden,
4/37 Judgment WP-305-21 (Group).doc Poonam Nagar, Andheri East, Mumbai 400093 .. Petitioners CRIMINAL WRIT PETITION NO.307 OF 2021 Jay Navin Dedhia Adult Aged 39 Years, ]]
5/37 Judgment WP-305-21 (Group).doc Raj Navin Dedhia Adult Aged 36 Years, Both are Indian Inhabitants, Presently residing at B/1501, Shree Vijaya Residency, Chiwda Gully, Lalbaug, Mumbai 400012 .. Petitioners Subhash Road, Mumbai 400080 a Ltd Company Registered under Companies Act, 1956, 3rd Floor, Multiplex Building, Nirmal Lifestyle, L.B.S.Marg, Mulund West, Mumbai 400080 Occupation :- Business, Aged:- not known, Indian Inhabitant Occupation :- Business
6/37 Judgment WP-305-21 (Group).doc CRIMINAL WRIT PETITION NO.6412 OF 2019 Mathew T. Poulose Adult Aged 63 Years, Indian Inhabitant, Presently residing at 703, Topaz,Nirmal Lifestyles, LBS Marg, Mulund (West), Mumbai - 400080 .. Petitioner Subhash Road, Mumbai 400080 a Ltd Company Registered under Companies Act, 1956, 3rd Floor, Multiplex Building, Nirmal Lifestyle, L.B.S.Marg, Mulund West, Mumbai 400080
7/37 Judgment WP-305-21 (Group).doc Occupation :- Business, Aged:- not known, Indian Inhabitant Occupation :- Business CRIMINAL WRIT PETITION NO.6413 OF 2019 Rajib Ajit Barua Adult, Aged 43 Years, Occ : Service Shila Ajit Barua Adult, Aged 65 Years, Occ : Housewife Indian Inhabitant, Presently residing at B-402, Mayuresh Park, Lake Road, Bhandup West, Mumbai - 400078 .. Petitioners
8/37 Judgment WP-305-21 (Group).doc Subhash Road, Mumbai 400080 a Ltd Company Registered under Companies Act, 1956, 3rd Floor, Multiplex Building, Nirmal Lifestyle, L.B.S.Marg, Mulund West, Mumbai 400080 Occupation :- Business, Aged:- not known, Indian Inhabitant Occupation :- Business
9/37 Judgment WP-305-21 (Group).doc CRIMINAL WRIT PETITION NO.6414 OF 2019 Subhash Ulhas Sawant Adult, Aged 41 Years, Occ : Service Indian Inhabitant, Presently residing at Flat No.:-405, Rustomjee Azzianno I wing, Saket Road, Thane West 400601 .. Petitioner Subhash Road, Mumbai 400080 a Ltd Company Registered under Companies Act, 1956, 3rd Floor, Multiplex Building, Nirmal Lifestyle, L.B.S.Marg, Mulund West, Mumbai 400080 Occupation :- Business,
10/37 Judgment WP-305-21 (Group).doc Aged:- not known, Indian Inhabitant Occupation :- Business CRIMINAL WRIT PETITION NO.6415 OF 2019 Lalit Suresh Patkar Adult, Aged 43 years Prajakta Lalit Patkar Adult, Aged 38 Years, Indian Inhabitant, Presently residing at B 101, Mayuresh Park, Lake Road, Bhandup-West, Mumbai - 400078 .. Petitioners Subhash Road, Mumbai 400080
11/37 Judgment WP-305-21 (Group).doc a Ltd Company Registered under Companies Act, 1956, 3rd Floor, Multiplex Building, Nirmal Lifestyle, L.B.S.Marg, Mulund West, Mumbai 400080 Occupation :- Business, Aged:- not known, Indian Inhabitant Occupation :- Business CRIMINAL WRIT PETITION NO.6416 OF 2019 Atul Mahadev Povale Adult, Aged 45 Years, Occ : Service Indian Inhabitant, Mrs.Shubhangi Atul Povale
12/37 Judgment WP-305-21 (Group).doc Adult, Aged 40 Years, Indian Inhabitant, Presently residing at 1401/4A Dreams, LBS Road, Bhandup (W), Mumbai - 400078 .. Petitioner Subhash Road, Mumbai 400080 a Ltd Company Registered under Companies Act, 1956, 3rd Floor, Multiplex Building, Nirmal Lifestyle, L.B.S.Marg, Mulund West, Mumbai 400080 Occupation :- Business, Aged:- not known, Indian Inhabitant Occupation :- Business
13/37 Judgment WP-305-21 (Group).doc CRIMINAL WRIT PETITION NO.6417 OF 2019 Sreejesh Ramachandran Adult, Aged 39 Years Binitha Pillai Adult, Aged 32 Years, Both are Indian Inhabitants, Presently residing at B-405, Maitri Icon, P135/36, Secotr 19, Kharghar, Navi Mumbai 410 210 .. Petitioners Subhash Road, Mumbai 400080 a Ltd Company Registered under Companies Act, 1956, 3rd Floor, Multiplex Building, Nirmal Lifestyle, L.B.S.Marg, Mulund West, Mumbai 400080
14/37 Judgment WP-305-21 (Group).doc Occupation :- Business, Aged:- not known, Indian Inhabitant Occupation :- Business CRIMINAL WRIT PETITION NO.6418 OF 2019 Lalita Keshav Phadke Adult, Aged 39 Years Keshav Moreshwar Phadke Adult, Aged 68 Years, Indian Inhabitants, Presently residing at A/703, Patidar Complex, Kannamear Nagar-2, Vikhroli (East), Mumbai - 400083 .. Petitioners
15/37 Judgment WP-305-21 (Group).doc Subhash Road, Mumbai 400080 a Ltd Company Registered under Companies Act, 1956, 3rd Floor, Multiplex Building, Nirmal Lifestyle, L.B.S.Marg, Mulund West, Mumbai 400080 Occupation :- Business, Aged:- not known, Indian Inhabitant Occupation :- Business
16/37 Judgment WP-305-21 (Group).doc CRIMINAL WRIT PETITION NO.6419 OF 2019 Sachin Vasant Marge Adult, Aged 41 Years, Occ Service Shilpa Sachin Marge Adult, Aged 36 Years, Occ Service Adult, Aged 32 Years, Both are Indian Inhabitants, Presently residing at C/104, Matoshree Park, Udayshree Society, Bhandup East, Mumbai 400042 .. Petitioners Subhash Road, Mumbai 400080 a Ltd Company Registered under Companies Act, 1956, 3rd Floor, Multiplex Building, Nirmal Lifestyle, L.B.S.Marg, Mulund West, Mumbai 400080 Occupation :- Business,
17/37 Judgment WP-305-21 (Group).doc Aged:- not known, Indian Inhabitant Occupation :- Business CRIMINAL WRIT PETITION NO.6420 OF 2019 Anilkumar Ramnivas Gupta Adult, Aged 35 Years, Indian Inhabitant, Occupation :Servoce Presently residing at 2802, A Wing, Flying Kite, Neptune Living Point, Bhandup West, Mumbai 400078 .. Petitioner Subhash Road, Mumbai 400080
18/37 Judgment WP-305-21 (Group).doc a Ltd Company Registered under Companies Act, 1956, 3rd Floor, Multiplex Building, Nirmal Lifestyle, L.B.S.Marg, Mulund West, Mumbai 400080 Occupation :- Business, Aged:- not known, Indian Inhabitant Occupation :- Business CRIMINAL WRIT PETITION NO.6421 OF 2019 Girish Subhash Patil Adult, Aged 37 Years Harshika Girish Patil Adult, Aged 36 Years Both are Indian Inhabitants, Presently residing at
19/37 Judgment WP-305-21 (Group).doc Khushi Heights, Flat No.504, Opp Nitinraj Hotel, Poona link Rd, Katemanivali, Kalyan E 421306 .. Petitioners Subhash Road, Mumbai 400080 a Ltd Company Registered under Companies Act, 1956, 3rd Floor, Multiplex Building, Nirmal Lifestyle, L.B.S.Marg, Mulund West, Mumbai 400080 Occupation :- Business, Aged:- not known, Indian Inhabitant Occupation :- Business
20/37 Judgment WP-305-21 (Group).doc CRIMINAL WRIT PETITION NO.217 OF 2020 Chandrashekhar Digamberrao Patil Adult, Aged 36 Years Indian Inhabitant, Presently residing at 80, Aditya Niwas, Manik Nagar, Taroda Road, Nanded- 431605 .. Petitioner Subhash Road, Mumbai 400080 a Ltd Company Registered under Companies Act, 1956, 3rd Floor, Multiplex Building, Nirmal Lifestyle, L.B.S.Marg, Mulund West, Mumbai 400080 Occupation :- Business,
21/37 Judgment WP-305-21 (Group).doc Aged:- not known, Indian Inhabitant Occupation :- Business CRIMINAL WRIT PETITION NO.218 OF 2020 Vijayakumar Ananthachary Obla Adult, Aged 59 Years, Occ Service Asha Kuppusamy Solai Age 56 Years, Occ :-Service Indian Inhabitants, Presently residing at K & M, 1st Floor, Rajparis Pancharatnam Apts, 82, Kamarajar Salai Virugambakam, Chennai 600092 .. Petitioners
22/37 Judgment WP-305-21 (Group).doc Subhash Road, Mumbai 400080 a Ltd Company Registered under Companies Act, 1956, 3rd Floor, Multiplex Building, Nirmal Lifestyle, L.B.S.Marg, Mulund West, Mumbai 400080 Occupation :- Business, Aged:- not known, Indian Inhabitant Occupation :- Business CRIMINAL WRIT PETITION NO.219 OF 2020 Jagdish Prasad Singh Adult, Indian Inhabitant,
23/37 Judgment WP-305-21 (Group).doc Presently residing at D2/501, THE RUTU ESTATE, Ghodbunder Road, Patlipada, Thane (West) 400607 .. Petitioner Subhash Road, Mumbai 400080 a Ltd Company Registered under Companies Act, 1956, 3rd Floor, Multiplex Building, Nirmal Lifestyle, L.B.S.Marg, Mulund West, Mumbai 400080 Occupation :- Business, Aged:- not known, Indian Inhabitant Occupation :- Business
24/37 Judgment WP-305-21 (Group).doc CRIMINAL WRIT PETITION NO.220 OF 2020 Sarang Digamberrao Patil Adult, Aged 40 Years, Indian Inhabitant, Presently residing at 80, Aditya Nivas, Manik Nagar, Taroda Road, Nanded 431605 .. Petitioner Subhash Road, Mumbai 400080 a Ltd Company Registered under Companies Act, 1956, 3rd Floor, Multiplex Building, Nirmal Lifestyle, L.B.S.Marg, Mulund West, Mumbai 400080
25/37 Judgment WP-305-21 (Group).doc Occupation :- Business, Aged:- not known, Indian Inhabitant Occupation :- Business CRIMINAL WRIT PETITION NO.221 OF 2020 Sagar Kantilal Dedhia Adult Aged 41 Years Nehal Sagar Dedhia Adult, Aged 37 years, Both are Indian Inhabitants, Presently residing at 502, Amartaru III, Nagardas X Road, Patel Wadi, Andheri East, Mumbai 400069 .. Petitioners
26/37 Judgment WP-305-21 (Group).doc Subhash Road, Mumbai 400080 a Ltd Company Registered under Companies Act, 1956, 3rd Floor, Multiplex Building, Nirmal Lifestyle, L.B.S.Marg, Mulund West, Mumbai 400080 Occupation :- Business, Aged:- not known, Indian Inhabitant Occupation :- Business
27/37 Judgment WP-305-21 (Group).doc CRIMINAL WRIT PETITION NO.222 OF 2020 Arif Ebrahim Dasurkar Adult, Aged 45 Years, Indian Inhabitant, Presently residing at 1103, Manav Co-Op.Housing Society, Jangal Mangal Road, Bhandup, Mumbai - 400 078 .. Petitioner Subhash Road, Mumbai 400080 a Ltd Company Registered under Companies Act, 1956, 3rd Floor, Multiplex Building, Nirmal Lifestyle, L.B.S.Marg, Mulund West, Mumbai 400080 Occupation :- Business,
28/37 Judgment WP-305-21 (Group).doc Aged:- not known, Indian Inhabitant Occupation :- Business CRIMINAL WRIT PETITION NO.251 OF 2020 Arvind Virendra Bartaria Adult Aged 48 Years Chanchal Arvind Bartaria Adult, Aged 42 Years, Indian Inhabitants, All are presently residing at 503, Sanskruti, Sec 42, Nerul West, Navi Mumbai 400706 .. Petitioners Subhash Road, Mumbai 400080
29/37 Judgment WP-305-21 (Group).doc a Ltd Company Registered under Companies Act, 1956, 3rd Floor, Multiplex Building, Nirmal Lifestyle, L.B.S.Marg, Mulund West, Mumbai 400080 Occupation :- Business, Aged:- not known, Indian Inhabitant Occupation :- Business CRIMINAL WRIT PETITION NO.254 OF 2020 Namita Ramdas Thombare Adult Aged 33 Years Ramdas Pandurang Thombare Adult, Aged 38 Years,
30/37 Judgment WP-305-21 (Group).doc Both are Indian Inhabitants, Presently residing at 2/8, Pumjabi Chawl, Sanghani Estate, Ghatkopar (West), Mumbai 400086 .. Petitioners Subhash Road, Mumbai 400080 a Ltd Company Registered under Companies Act, 1956, 3rd Floor, Multiplex Building, Nirmal Lifestyle, L.B.S.Marg, Mulund West, Mumbai 400080 Occupation :- Business, Aged:- not known, Indian Inhabitant Occupation :- Business
31/37 Judgment WP-305-21 (Group).doc CRIMINAL WRIT PETITION NO.328 OF 2021 Ankit Singh Siwach Adult, Aged 37 Years Indian Inhabitant, Presently residing at 1401, A-Wing, Green Heritage, Plot No.79/80, Sector 20, Kharghar, Navi Mumbai -410201 .. Petitioner
32/37 Judgment WP-305-21 (Group).doc Mr.Sanjiv Sawant with Mr.Abhishek Matkar, i/b Mr.Amit G. Kasbe with Ms.Nikita D. Shelar and Ms.Akansha Gaikwad for the Petitioners.
Mr.Vishal Jathar i/b MDP & Partners for Respondent Nos.3 to 6.
Mr.S.R.Shinde, APP and Mr.J.P.Yagnik, APP for State.
CORAM : S.S.SHINDE & MANISH PITALE, JJ.
RESERVED ON : 01st FEBRUARY, 2021 PRONOUNCED ON : 11th FEBRUARY, 2021 JUDGMENT (PER MANISH PITALE, J.) Rule. Rule made returnable forthwith. With the consent of learned counsel appearing for the parties, heard finally. Since the issue involved in these writ petitions is common, we think it appropriate to dispose of all these twenty three writ petitions by common judgment.
33/37 Judgment WP-305-21 (Group).doc These writ petitions are filed by the petitioners seeking a direction to respondent No.2 i.e. Senior Inspector of Police, Mulund Police Station, Mumbai for registration of FIR against respondent Nos.3 to 6 in these writ petitions for the offences punishable under Sections 420 and 406 of the Indian Penal Code (hereinafter referred to as, "the IPC"), based on written complaints submitted by the petitioners in February, 2020 before respondent No.2. According to the petitioners, the grievances stated by them in such a written complaints, disclose all the ingredients of the aforesaid offences and that therefore, FIRs ought to be registered against respondent Nos.3 to 6.
The case of the petitioners before this Court is that respondent No.3-M/s Nirmal Lifestyle Ltd. @ Nirmal Group of Companies, of which respondent No.4 is a Director, respondent No.5 is the Managing Director and respondent No.6 is the Additional Director, had floated a project for construction of the residential complex in a property at Mulund (West), Mumbai. The petitioners had booked flats in the said residential complex and they had also made substantial payments towards the same. According to the petitioners, respondent Nos.3 to 6 had promised to deliver possession of completed flats within 36 months. But, respondent Nos.3 to 6 failed to start the project and in January, 2017, they stated their inability to commence the construction and hand over the flats to the petitioners. Looking to the inability of respondent Nos.3 to 6 to abide by their promise of handing over possession of flats, the petitioners sought refund of their amounts and submitted requests for cancellation of booking of
34/37 Judgment WP-305-21 (Group).doc flats. Respondent Nos.3 to 6 stated that they would return the amount with 9% interest per annum and in this manner, settlements were arrived at. Memoranda of Understanding were executed between the petitioners on one hand and respondent Nos.3 to 6 on the other.
But, thereafter, respondent Nos.3 to 6 did not honour their commitment as per the Memoranda of Understanding, despite the fact that the petitioners approached the said respondents repeatedly. When respondent Nos.3 to 6 did not respond to the repeated requests made by the petitioners, they were constrained to lodge complaints in February, 2020, against respondent Nos.3 to 6 before respondent No.2, alleging offences committed under the IPC as well as under the provisions of the Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 and the Real Estate (Regulation and Development) Act, 2016. As there was no progress in pursuance of the complaints lodged by the petitioners, they were constrained to file the present writ petitions.
7.
Respondent Nos.3 to 6 appeared before this Court in these writ petitions and through their counsel, expressed their desire to finally settle the dispute with the petitioners so that criminal proceedings were not initiated against them. In pursuance of the same, affidavits were filed in these writ petitions by respondent No.4 on behalf of respondent Nos.3 to 6, giving detailed chart as to the manner in which amounts would be returned to the petitioners in installments from February, 2021 to December, 2021.
35/37 Judgment WP-305-21 (Group).doc 8.
Upon perusal of the affidavits and the charts annexed thereto, learned counsel for the petitioners, submitted that there was lack of proper authorisation to respondent No.4 in order to file affidavits and to promise return of amounts in terms of the charts annexed to the affidavits. It was submitted that the petitioners had an apprehension that all the directors of respondent No.3 would not abide by their commitment before this Court, as a result of which, it was difficult for the petitioners to agree to the said proposal made on behalf of respondent Nos.3 to 6.
9.
After the writ petitions were adjourned on a few occasions to sort out the aforesaid issue, affidavits were filed in some of the writ petitions. Finally, respondent Nos.3 to 6 placed on record before this Court a Resolution dated 25th January, 2021 whereby the Board of Directors of respondent No.3-company authorised respondent No.4-Rajeev Jain, Director of respondent No.3-company, to sign affidavits-in-reply, consent terms and other documents before this Court to settle all the matters mentioned in Annexure 'A' attached to the Resolution. The said Annexure states the names of parties of all the twenty three writ petitions filed before this Court on behalf of the petitioners. Learned counsel for respondent Nos.
3 to 6 also placed on record a fresh affidavit dated 29th January, 2021 that addresses the outstanding issues raised by the petitioners. Such affidavit dated 29th January, 2021 and Resolution dated 25th January, 2021 alongwith Annexure 'A' was placed on record in Cri.Writ Petition (St) No.308 of 2021 (Cri.Writ Petition No.328 of 2021).
36/37 Judgment WP-305-21 (Group).doc between February, 2021 and December, 2021. The said affidavit dated 29th January, 2021 alongwith its exhibits and the Resolution dated 25th January, 2021 alongwith Annexure 'A' are treated as having been filed in all the twenty three petitions before this Court. 10.
The relevant portion of the said affidavit dated 29th January, 2021 reads as under :
"24. I say that the Parties have settled the disputes on the following terms and conditions :
a These Respondents agree to repay an amount of Rs.25,01,852/- (Rupees Twenty Five Lakhs One Thousand Eight Hundred Fifty Two Only) towards the interest on principal amount of Rs.16,56,293/- (Rupees Sixteen Lakhs Fifty Six Thousand Two Hundred Ninety Three Only) and with interest at rate of 9% per annum from the date of booking till 31st October 2020 being the "Payable Amount" from February 2021 till 31st December 2021, in equal instalments;
b. These Respondents further agree to pay further interest (by reducing balance on Principal Amount) of Rs.1,24,154/- (One Lakh Twenty Four Thousand One Hundred Fifty Four Only) from February 2021 till December 2021 ("Further Interest"). The said Further Interest will be paid along with the last Instalment i.e. in the month of December 2021; c. The Petitioners confirm, declare and undertake that upon receipt of the total sum of Rs.25,01,852/- (Rupees Twenty Five Lakhs One Thousand Eight Hundred Fifty Two Only) along with the said Further Interest of Rs.1,24,154/- (One Lakh Twenty Four Thousand one Hundred Fifty Four Only), all allegations, claims, contentions, disputes and proceedings/Interim Applications and/or Criminal Writ Petitions including the said Petition/cases, made or initiated by the Petitioners against these Respondents before any judicial or quasi-judicial forum/s and/or High Court and/or authority and/or Police Authority having power to adjudicate any alleged grievances filed by the Petitioners are/shall be
37/37 Judgment WP-305-21 (Group).doc withdrawn forthwith.
d. The parties agree and undertake to this Hon'ble Court to keep these Consent Terms strictly confidential and do not disclose the existence of any term or terms hereof to any third party under any circumstances whatever. The parties further agree that, the Advocates for the parties shall alone be entitled to retain a copy of these consent terms." 11.
Since the parties have agreed to settle their dispute in above terms, it would be appropriate to dispose of the writ petitions in terms of such settlement. The settlement terms as well as chart at Exhibit 'B', filed on behalf of respondent Nos.3 to 6, are treated to be part of this judgment. Accordingly, the writ petitions are disposed of.
12.
It is directed that the petitioners in these writ petitions and respondent Nos.3 to 6 shall strictly abide by the aforesaid terms of settlement. Respondent Nos.3 to 6 are directed to pay the installment of February, 2021 before 20th February, 2021 and to pay the installments from March, 2021 to December, 2021 on or before 10th day of each month.
13.
Rule is made absolute in terms of the above order. (MANISH PITALE, J.) (S.S.SHINDE, J.)