Adriyana Eventide & Anr. v. Dee Mark Hotels & Resorts & Anr.

1. The instant petition is preferred by the petitioners under Article 227 of the Constitution of India read with Section 482 Cr.P.C. for setting aside/quashing the impugned order dated 10.02.2014 passed by the learned Metropolitan Magistrate-03, Patiala House Courts, New Delhi in CC. No. 258/1A/13 titled as M/sDee Marks Hotel & Resorts vs. M/s Adriyana Eventide & Ors. wherein the learned Metropolitan Magistrate allowed the application moved by the respondents/complainants for condonation of delay of 27 days in filing the complaint under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881. 2017:DHC:2206

2. The brief facts stated are that the petitioner no.2- Dhyanesh Raj is one of the partners of the petitioner No.1/firm- M/s Adriyana Eventide who are engaged in the business of event management. As per the alleged allegations in the complaint under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881 on 12.01.2013 the petitioner No.2 along with other partners of the petitioner No.1/firm approached the respondent No.1/complainant- M/s Dee Marks Hotel and Resorts which is a unit of the respondent No.2- M/s Dalip Trading Pvt. Ltd. for arranging/booking a marriage party/dinner at the venue of the respondents/complainants for their client.

3. After the estimate for the venue and the function was finalized the petitioner No.1 and the partners of the petitioner No.2/firm gave a sum of Rs 25,000/- as advance to the respondent No.1/complainant at the time of booking the party. On 28.01.2013 the petitioner No.1 further gave a sum of Rs. 75,000/- to the respondent No.1/complainant and assured that the total bill for the function will be cleared before the end of the marriage party.

4. Thereafter, on 30.04.2013 in part discharge of their liability the petitioner No.1 issued a cheque bearing No. 444676 dated 30.04.2013 drawn on ICICI Bank, Greater Kailash II Branch, New Delhi for a sum of Rs. 1,86,000/- in favour of the respondent No.1/complainant. On 14.06.2013 the respondent No.1/complainant presented the said cheque to its banker but the same was returned unpaid vide return memo dated 14.06.2013 with remarks "Funds insufficient".

5. A legal notice dated 05.07.2013 was served upon to the petitioner No.1, petitioner No.2/firm and its other partners by the respondents/complainants thereby demanding the cheque amount with interest within 15 days of the receipt of the legal notice. The petitioners replied to the said legal notice of the respondents/complainants on 19.07.2013. Further, when the petitioners failed to make the cheque payment within 15 days notice period the respondents/complainants filed a complaint on 17.09.2013 under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881 against the petitioners and the other partners of the firm in the Court of learned Chief Metropolitan Magistrate, Patiala House Courts, New Delhi.

6. Further, the respondents/complainants had also moved an application for condonation of delay of 27 days in filing of the aforesaid complaint case under the NI Act.

7. Consequently, after perusal of the record and considering the submissions made by the learned counsels of the parties the learned Metropolitan Magistrate-03, Patiala House Courts, New Delhi vide impugned order dated 10.02.2014in CC. No. 258/1A/13 allowed the aforesaid application for condonation of delay of the respondents/complainants subject to cost of Rs. 2500/-. Hence the present petition.

8. The learned counsel for the petitioners has submitted that the learned Metropolitan Magistrate while allowing the application of the respondents/complainants for condonation of delay has not appreciated the fact that the cause disclosed by the AR for the respondents/complainants was not supported by any documents. Therefore the learned Metropolitan Magistrate in a mechanical manner and without application of mind has passed the impugned order dated 10.02.2014 which is bad in law and liable to be set aside/quashed by this Court under Section 482 Cr.P.C.

9. On the contrary, the learned counsel for the respondents has submitted that the impugned order dated 10.02.2014 passed by the learned Metropolitan Magistrate is just and proper and does not require interference by this Court to invoke inherent powers under Section 482 Cr.P.C.

10. In the instant petition the whole question hinges around whether the learned Metropolitan Magistrate has rightly allowed the application of the respondents/complainants for condonation of delay of 27 days in filing the application under Section 138 read with Section 141 of NI Act? The answer is YES.

11. In the instant petition the respondents had filed an application dated 17.09.2013 under Section 138 read with Section 141 of NI Act therein disclosing in para No. 13 that there is delay of 27 days in filing the said complaint application and the complainants had filed a separate application for condonation of delay stating therein the cause of delay in filing the said complaint application under Section 138 of NI Act.

12. The separate application for condonation of delay was filed along with the application under Section 138 of NI Act. The grounds made in the application for condonation of delay are reproduced as under:-

matter was in his custody, immediately contacted his advocate and filed the complaint immediately thereafter on 17/9/2013.

7. That due to the reasons mentioned above the AR has to immediately go to Uttrakhand on an urgent call by his family members after the havoc of disaster at Kedarnath, he could not keep his senses in order and could not handover the related papers of the case to another responsible person or reminded for filing of complaint and thus the delay of 27 days in filing of accompanying complaint has occurred.