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M/s. Zapp Hotels & Resorts Pvt. Ltd. & Another v/s M/s. Devi Aashirwad Resorts Pvt. Ltd. & Another

    Cr. M. (M) Nos. 111, 112, 115 to 117 of 2021; Crl. M. Nos. 348, 349, 353, 354, 355 of 2021
    Decided On, 13 August 2021
    At, High Court of Jammu and Kashmir
    By, THE HONOURABLE MR. JUSTICE RAJNESH OSWAL
    For the Petitioners: Narinder Kumar Attri, Advocate. For the Respondents: Aditya Gupta, Advocate.


Judgment Text
1. In these five petitions, the common issue has been raised by the petitioners, they were heard together and are being disposed of by this common judgment. The facts in all the petitions are common, the same are being extracted from the CRM (M) No.111/2021. a/w conneceted matters

2. The petitioners have filed this petition under section 482 Cr.P.C for quashing the complaint No. 78/2021 under section 138 of Negotiable Instrument Act (for short the Act), titled, M/s Devi Ashirwad Resorts Pvt. Ltd. Vs. M/s Zapp Hotels and Resorts Pvt. Ltd. and others, against the petitioners as well as summoning order 12.01.2021 issued by the learned Judicial Magistrate 1st Class (Munsiff), Jammu (hereinafter to be referred as the trial court).

3. It is stated in the petition that the respondents filed a complaint under section 138 of the Act, titled, M/s Devi Ashirwad Resorts Pvt. Ltd. Vs. M/s Zapp Hotels and Resorts Pvt. Ltd. and others bearing case No. 78/2021 on account of dishonour of the cheque No. 000021 dated 05.10.2020 before the learned trail court for an amount of Rs. 13,84,533/- for discharge of the liability of the monthly rent of the Hotel Devi Grand. The learned trial court issued the process against the petitioners vide order dated 12.01.2021. It is stated that the learned trial court simply reproduced the contents of the complaint and has not assigned any reason while issuing the process against the petitioners. It is further stated that in terms of paragraph-3 of the lease deed executed between the parties, the petitioners had given advance cheques for 35 months and the details of the cheques have been mentioned in the lease deed.

4. The petitioners had been running a business of hotel till the outbreak of COVID-19 pandemic. However, the Union Government vide order dated 24.03.2020 imposed complete lockdown and later, on 11.08.2020, the maximum capacity of pilgrims visiting the Holy Shrine Mata Vaishno Devi was capped at 5000 pilgrims per day till 30.09.2020 by the Government and only 500 pilgrims outside the Union Territory of J&K per day were permitted a/w conneceted matters and this limit was raised to 15,000 per day up to 31.01.2021 and at present this limit is 25,000 per day with effect from 01.02.2021. It is stated that the petitioners have already responded to the notice but the respondents suppressed the same from the trial court. It is stated that learned trial court has not taken into consideration the legal aspect that the contract to do the business was on the basis on the strength of license deed and that had become impossible on account of outbreak of COVID-19 pandemic and the contract became void in terms of section 56 of the Contract Act and further that section 43 of the Negotiable Instrument Act provides that negotiable instrument drawn for a consideration which fails, creates no obligation. It is further stated that acknowledging the outbreak of COVID-19 and closure of the Hotel industry, on 5th of December 2020, a meeting took place, in which the parties have agreed to pay Rs 5.5 lacs per month from October 2020 till April 2021 and out of which Rs 3.00 lacs per month is being paid and Rs. 2.5 lacs was agreed to be paid in the last week of April 2021 and even the cheque of Rs. 12.50 lacs has been received by respondent in advance.

5. Mr. Narinder Kumar Attri, learned counsel for the petitioners vehemently argued that as the hotel business came to stand still and the hotel could not be operated upon by the petitioners, so the consideration for which the cheque was issued failed, as such, negotiable instrument ceases to have any value. He further argued that because of the outbreak of the COVID-19 Pandemic, the contract has become void in terms of section 56 of the Contract Act. Therefore, the impugned complaint as well order of summoning dated 12.01.2021 issued by the trial court is required to be quashed. a/w conneceted matters

6. Per contra, Mr. Aditiya Gupta, learned counsel for the respondents submitted that the learned trial court has taken the cognizance as per the law and assuming that there is any substance in the contentions of the learned counsel for the petitioners, the same is matter of trial and cannot be adjudicated upon in a petition under section 482 Cr.P.C.

7. Heard learned counsel for the parties and considered the matter.

8. A perusal of the complaint filed by the respondents reveals that the cheque in question was issued by the petitioners in discharge of their liability that accrued in terms of the licence deed placed on record by the respondents before the trial court and the learned trial court after satisfying itself that the complaint fulfills the requirements of sections 138 and 142 of the Act, issued the process against the petitioners vide order dated 12.01.2021. A perusal of the licence deed reveals that there is no stipulation in the licence deed that provided for waiver of the rent in view of the un-foreseen event resulting into the cessation of the business.

9. Be that as it may, without commenting upon the merits of the case, the grounds urged by the petitioners, whether they have any substance or not, can at the most amount to defense of the petitioners that the petitioners can raise before the trial court during the trial. The Learned Magistrate while issuing process has to form an opinion on the basis of material placed on record as to whether there is sufficient ground for proceeding in the case. Detailed reasons are not required to be furnished at this stage. I have perused the orders impugned and there is no legal infirmity either in the complaints filed by the respondents or in the order by virtue of which the process has been issued by the trial Court. a/w conneceted matters

10. In view of the above, there is no merit in this petition

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, the same is dismissed along with connected CrlMs. The other connected petitions shall also stand dismissed on the same terms as stated in CRM (M) No. 111/2021 hereinabove. 11. The five complaints are between the same parties, as such, they are required to be tried by one Court. Accordingly, it is directed that all the complaints be tried by the learned Forest Magistrate (JMIC) Jammu. The complaints impugned in these petitions pending before the Court of Judicial Magistrate 1st Class (Munsiff), Jammu, Jammu be transferred to Forest Magistrate (JMIC) Jammu forthwith. 12. Copy of this order be placed on the record of each file.
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