2024 (10) TMI 211 - HC - Indian Laws

Seeking permission to reopen Complaint which was inadvertently withdrawn from the Court of learned Metropolitan Magistrate- 02 (South) Saket Court New Delhi - Recovery of Award amount - dishonour of cheque - HELD THAT - Though the petitioner has claimed that it was due to inadvertence that first Complaint Case No. 469088/2016 for cheque amount of Rs. 51, 13, 692/- got withdrawn when the petitioner intended to withdraw the second Complaint Case No. 469085/2016 pertaining to the cheque for lesser denomination in the sum of Rs. 74, 000/-. Though the petitioner has tried to justify that this inadvertence happened on account of the two Complaint Cases being taken on the same day but the conduct of the petitioner does not show that there was any inadvertence. Firstly as observed above some amounts of money have already been recorded as paid and only about Rs. 30-32 Lakhs was recorded to be outstanding. Therefore the claim that there was an outstanding liability of Rs. 67, 60, 656/- by the petitioner is not tenable. Secondly the petitioner having withdrawn the first Complaint case approached the Mediation Centre but surprisingly still did not come to know about the alleged inadvertence. Learned counsel for the petitioner has sought to explain by asserting that though the parties were referred to the Mediation Centre but no consensus of settlement was arrived at the Mediation Centre consequently the mediation failed. The Application under Section 362 Cr.P.C. for recall of the Order dated 20.05.2022 was filed before the learned Metropolitan Magistrate after six months on 05.06.2023 and was dismissed on 28.11.2023. Such conduct of the petitioner again reflects that there was no inadvertence or else it would have acted promptly to rectify the alleged error - it is also pertinent to observe that having withdrawn the Complaint Case the petitioner got the Execution Petition for recovery of the said amount revived in regard to the Arbitration Award. It is quite apparent that the petitioner rather than perusing the remedy under the Complaint Cases for the recovery of the due amount had chosen to pursue the matter further in the Execution of the Arbitral Award. There is no merit in the present Petition which is hereby dismissed.

Summary

Issues:
Reopening of Complaint Case under Section 138 of N.I. Act due to inadvertent withdrawal.

Detailed Analysis:

1. Background and Petitioner's Claim:
The petitioner, a Chit Fund Company, filed two Complaint Cases under Section 138 of the N.I. Act against the respondent for dishonored cheques. An Arbitration Award was in favor of the petitioner, but execution was halted due to an oral settlement with the respondent. The petitioner seeks to reopen Complaint No. 469088/2016, withdrawn inadvertently, as the respondent failed to honor the settlement.

2. Sequence of Events and Oral Settlement:
Parties reached an oral settlement during pending Complaint Cases, with the respondent making partial payments. The petitioner's Statement of Account showed a balance due of Rs. 67,60,656/-. The petitioner mistakenly withdrew the wrong Complaint Case on advice from the court, thinking the lower denomination case was withdrawn.

3. Legal Proceedings and Jurisdiction Issue:
The petitioner later withdrew the second Complaint due to jurisdictional issues. Mediation was attempted but failed. An Application under Section 362 CrPC to rectify the withdrawal error was dismissed. The petitioner revived execution proceedings post-failed settlement talks.

4. Respondent's Defense and Settlement Argument:
The respondent argued that substantial payments were made, leading to withdrawal of both Complaint Cases. The respondent disputed the petitioner's claim of outstanding liability. The respondent highlighted the delay in rectifying the withdrawal error and the petitioner's pursuit of execution over Complaint Cases.

5. Court's Observations and Dismissal:
The court noted discrepancies in the petitioner's claims, lack of prompt action to rectify errors, and the petitioner's choice to pursue execution over Complaint Cases. The court found no merit in the petitioner's claim of inadvertent withdrawal and dismissed the petition accordingly.