HARSH MAHAJAN AND ANR Vs. APEX BUILDERS

JUDGEMENT

(1.) In the petition, the petitioners inter alia have sought multiple reliefs;

(2.) In the petition, it has been stated that petitioner No.1 is the Marketing head whereas petitioner No.2 is the Managing Director of M/s Niagara Metals India limited. M/s Niagara Metals India limited is a reputed company of India incorporated in the year 2004 under the Companies Act, 1956 and is engaged in manufacturing of Heavy Steel Fabrications, Design, Detailed Engineering, Fabrication, Supply and Construction of Pre-Engineered/Pre-Fabricated Steel Structural Buildings (PEB) on Turnkey basis. M/s Niagara Metals India limited was established as an Indo-American Joint Venture patronized by the Green Brier Groups, USA and has enjoyed the distinction of being amongst the few Indian Companies to be certified by the Association of American Rail Roads. It has been a leading supplier to Companies like Gunderson Inc USA, Trenton Works Canada, JCB United Kingdom, Metso Minerals, ISGECJohan Thompson, BHEL, DLW to name a few. The plaint of M/s Niagara Metals India limited is located on the Chandigarh Road, Ludhiana (Punjab) on a 60000 sq.ft. of Built up area and the unit has the capacity to churn out 2000 MT/ Month of world class and the most complex steel fabrications. It is further stated that in furtherance of the business activity of M/s Niagara Metals India limited, the respondent met the petitioner No.1 in the first week of February, 2017 through one of his friends Mr. Anwar Ali at Jammu and wanted M/s Niagara Metals India Limited to do fabrication work for him. After the initial meeting, the respondent sent drawings to M/s Niagara Metals India Limited India on 19.02017 at Ludhiana which were again sent by him next date as the initial drawings were not legible. After the initial consultation an amount of Rs. 15.00 Lac as advance was given by way of cheque by the respondent to the petitioner at Ludhiana as advance payment for finalization of the order. The fabrication work which was to be done is with regard to Open Air Showroom of Automobiles in Srinagar. After getting the advance payment, the petitioners initiated the fabrication work at Ludhiana but contrary to the Agreement executed between the parties at Ludhiana, the respondent did not adhere to the terms and conditions of the agreement. It is also contended that as is clear from the agreement afore-referred there is no scope of unilateral cancellation or modification of the contract under any circumstances. The entire gamut of designing and detailed engineering activity of the project of the respondent has involved enormous expenditure on the petitioners. Even after the final approval of the final drawings the respondents made additions in the structure which raised costs by 12%. However, as a matter of indulgence the petitioners did not revise or raise the cost as an expression of goodwill. Thereafter, the request by the petitioner to the respondent for making balance payment was not acceded to by the respondent and the respondent defaulted in the agreement by not making the balance payment. As a matter of fact, because of the default committed by the respondent and his non-adherence to the terms and conditions of the contract/agreement the petitioner suffered loss worth Rs. 40 Lac for which the respondent has already been informed through email dated 01.12014. The cancellation of the agreement by the respondent unilaterally on the projected justification of floods in Kashmir valley clearly shows that the default was on the part of the respondent. It is further averred that the respondent instead of settling the issues with the petitioners by making the balance payments, has chosen to file a criminal complaint titled M/s Apex Builders Vs Harsh Mahajan and another before the Court of learned Judicial Magistrate, 1st Class, Baramulla, Kashmir. It is further stated that the petitioners being the resident of Punjab cannot attend the criminal proceedings at Srinagar due to the prevailing circumstances.

(3.) The petitioners have challenged the complaint and order impugned on the ground that the complaint is not sustainable stating that from bare perusal of the complaint, no offence is made out as per the allegations leveled against petitioners in the complaint. The complaint has been moved with mala fide intention and the court below lacks the territorial jurisdiction because the cause of action in the instant petition has accrued at Ludhiana, Punjab where the agreement has been communicated and the payments were received through their bankers. The order impugned by virtue of which the court below has taken cognizance is absolutely bad in the eyes of law and against the law laid down by the Apex Court in case titled Priyanka Srivastava and another vs State of UP and Others reported in, (2015) 6 SCC 287.