Sumit Pratap v. Icici Bank Ltd. & Anr

RAJNISH BHATNAGAR, J. DECEMBER 06, 2019 Sumant

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 06.12.2019 + WP(CRL.) 3417/2019 & CRL. M.A. 42101/2019 SUMIT PRATAP ..... Petitioner Through: Mr. Anil Kaushik, Mr. Abhishek Mishra and Mr. Akash Bhardwaj, Advocates. Versus ICICI BANK LTD & ANR. .....Respondents Through: Mr. Puneet Kumar Bhalla, Adv. for respondent No. 1. Mr. R.S. Kundu, A.S.C. for the State with Mr. Hitesh Vali and Bhagat Singh, Advocates. SI Sanjeev Kumar- P.S. Paharganj, Delhi. CORAM: HON'BLE MR. JUSTICE RAJNISH BHATNAGAR RAJNISH BHATNAGAR J. (ORAL) CRL. M.A. 42102/2019 Exemption allowed, subject to all just exceptions. The application stands disposed of. WP(CRL.) 3417/2019 & CRL. M.A. 42101/2019 1. Issue notice. Ld. A.S.C. for the State who appears on advance notice, accepts notice. Ld. counsel for the respondent No. 1who also appears on advance notice, accepts notice. 2. The present Writ Petition has been filed by the petitioner under articles 226 & 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure, 1973 for quashing of the criminal complaint bearing CC No. 5939 of 2019 titled as "ICICI Bank Ltd. Versus Sumit Pratap" pending before the Court of Ld. Metropolitan Magistrate Ms. Tapasya Agarwal, Central District, Tis Hazari Courts, Delhi and all other proceedings initiated out of the said complaint including the order dated 03.06.2019. 3. Briefly stated the facts of the case are that in the year 2015 the petitioner booked a flat which was proposed to be part of the project named "Victory Ace"at Gautam Budh Nagar, UP (hereinafter called "the project") floated by M/s Dream Procon Pvt. Ltd. (hereinafter called "the builder"). The builder allotted flat bearing No. 2701, Tower A1, Unit Type (Spade B) 3 BHK + 2T measuring 1495 Sq. feet and in pursuance thereof the builder and the petitioner entered into an allotment agreement according to which the total sale consideration for the said flat was Rs. 68,99,425/- and the same was a construction linked payment plan. 4. After the issuance of the allotment letter, the petitioner entered into a tri-partite loan agreement dated 27.08.2015 with the builder and respondent No. 1. As per the Tri-partite loan agreement, even though petitioner is termed as the ällotee/borrower", the agreement dated 27.08.2015, is in the form of a Project financing agreement between the builder and the respondent No. 1 Bank and it is the builder who is liable to pay any amount advanced by the bank to the builder. The agreement stipulates that upon the transfer of the flat or upon termination of the allotment agreement, it is the builder who is liable to pay any such amount of money advanced by the bank. 5. According to the petitioner after the execution of the agreement dated 27.08.2015, the bank started disbursing funds directly to the builder in advance which were in excess of what has been stipulated in schedule B to the agreement dated 27.08.2015, which was in contravention of the agreement as the builder did not adhere to the construction schedule, as prescribed and agreed to between the parties. Since the builder did not comply with the agreed timeline of construction and was not in a position to deliver the possession of the flat as construction activities had come to a halt and the builder had abandoned the project, so the petitioner vide letter dated 03.10.2018, terminated the allotment agreement and tri-partite loan agreement dated 27.08.2015 and the fact of termination of the allotment agreement and the surrender of the flat was also communicated to respondent No. 1 bank vide e-mail dated 04.10.2018. 6. According to the petitioner, as per the tri-partite agreement dated 27.08.2015, upon termination the builder was obligated to either refund the money to respondent No. 1 bank or enter into a fresh tri-partite agreement with a new prospective buyer. However, the respondent No. 1 bank, instead of pursuing its remedies against the builder, with a malafide intent of unjustly enriching itse