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+ Crl.M.C.88/2011
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CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J.
Crl.M.C.88/2011 Page 1 of 50
at Police Station Economic Offence Wing on the complaint
area, the rate per square feet was applicable to the changed
area.
Crl.M.C.88/2011 Page 2 of 50
allottee was not allowed to put the space to his own use and
respondent No.2 for the first time, i.e. few days before filing
for the formal launch of the project by the petitioners for the
Delhi.
of the said FIR. The terms and conditions which were part of
they will be at liberty to lease / rent out the said space. This
in the mall.
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12. Further submits that clause Nos.7, 34 and 48 of
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Commercial Space and other charges shall be
calculated and payable on the basis of the total
area arrived at as per final dimensions of the
said Commercial Complex and Space on
completion of the said Commercial Complex and
Building as per terms, pattern and manner
specified herein and in the Commercial Space
Buyers‟ Agreement.
signing the said terms and conditions, he did not read the
and conditions.
per as the clauses quoted above, it was clear that the area
Crl.M.C.88/2011 Page 9 of 50
allotted was tentative and was likely to change and also that
the applicant, but the use was specified in clause No.48, the
applicant would not put the space to his own use and
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18. Ld.Sr.Advocate further submits that as per the
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(e) Awards costs including exemplary costs for
the present proceedings, in favour of the plaintiff
and against the defendant No.1; and
respondent No.2.
Crl.M.C.88/2011 Page 14 of 50
himself signed the terms and conditions, wherein he had
investors category and was not entitled to use the space for
same.
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26. Ld.senior counsel further submits that the FIR is
however all other persons have realised and know the terms
merely a paper-decree.
of Haryana & Ors Vs. Bhajan Lal, 1992 Supp (1) SCC
Crl.M.C.88/2011 Page 16 of 50
335 which lays down the principles under which the FIR can
Tiwari & Ors Vs. Nanda Kishore Roy 2010 (8) SCC 422
under:
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even if given face value and taken to be correct
in their entirety, disclosed no cognizable offence.
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30. The counsel also relied upon a recent judgment of
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initial promise or existence thereof from the very
beginning of formation of contract.
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plaintiff in respect of the shops in question upon
payment of dues, if any. These three issues are
answered in the aforesaid terms.”
abuse of the process of law and this should quash the same
law to continue.
Rs.2,28,98,182/-.
project called Ambi Mall at Vasant Kunj, New Delhi came out
deception.
Crl.M.C.88/2011 Page 24 of 50
39. Further submits that the conduct of the petitioner
since the beginning was not only unethical but also contrary
square feet, at basic sale price. The word basic sale price
Even in the payment plan, the word basic sale price has
months.”
the two allotment letters which form the basis of the Civil
additions to clause Nos.1,4, 7, 14, 15, 34, 36, 45, & 49 are
Crl.M.C.88/2011 Page 26 of 50
Thus, the petitioner company with his oblique motives
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the fact that not even a single allottee was stayed with the
amounts.
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the respondent No.2 part with huge amount of money for its
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No.48. The inclusion of such a clause, like clause No.48,
other offences.
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sparingly, the very plentitude of the powers requires great
under:-
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27.04.2004: A perpetual lease deed was
executed.
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knowing the fact that they would not own the booked
Crl.M.C.88/2011 Page 34 of 50
(1990) DLT, „Mayawati vs Kaushalya Devi‟
(1990) 3 SCC 1; „Ganesh Shet vs. Dr.C.SG.K.
Setty & Ors‟ (1998) 5 SCC 381 and „M/s Mirahul
Enterprises vs. Vijay Srivastava‟ AIR 2003 Delhi
15, to contend that in a suit for specific
performance, the evidence and proof of
agreement must be absolutely clear and certain
and the grant of specific performance is
discretionary and has to be exercised on sound
principles.”
as under:-
Crl.M.C.88/2011 Page 35 of 50
understanding was that the plaintiff would get
the possession of the shops in question. This
witness (PW-3), has stated that Mr.Vinod
Aggarwal (DW-2 of defendant No.2) at the time
of booking of the shops in question had told that
the Application Forms were not yet printed and
they shall be given when the Allotment Letter of
the shops in question is issued. Regarding the
Application Forms (Ex.PW1/DX1 and E.PW1/DX2),
what this witness (PW-3) has to say is as under:-
Crl.M.C.88/2011 Page 37 of 50
the time of the lodging of the First
Information Report till the submission
of the report by the officer in charge
of police station in court under
Section 173(2) Cr.P.C., this field being
exclusively reserved for the
investigating agency."
Crl.M.C.88/2011 Page 38 of 50
respondent No.2 in CS(OS) No.38/2008 and submitted that
out of four prayers; „prayer (a)‟ was rejected; „prayers (b) &
are as under:-
Crl.M.C.88/2011 Page 39 of 50
(734.01 sq. ft) of Super Area of space on Ground
Floor under Instalment Payment Plan as per
enclosed Payment Plan. Kindly note that the
above allotment is subject to your execution of the
Commercial Space Buyer‟s Agreement on
Company‟s standard format, contents of which
have been explained and understood by you and
your compliance of all the terms and conditions as
given in your application for allotment of space
and due performance and compliance of all your
obligation as contained in the said Application
Form and Commercial Space Buyer‟s Agreement”.
Crl.M.C.88/2011 Page 40 of 50
same is attached to this application. The applicant had
been read and understood and further agreed that till the
days from the date of its dispatch by the company then the
Buyer‟s Agreement.
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62. On perusal of the clause No.34, of salient terms
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65. On perusal of clause No.48, it is very clearly
Category and would not put the space to his own use and
allottee.
of the earnest money etc. and the company shall have the
prescribed use.
for petitioners that till date not even a single person has
been allotted any shop for his personal use in this scheme.
not even a single shall been given on sale for the use of any
individual.
and Other (1980) 1 SCC 554, wherein it was held that the
Crl.M.C.88/2011 Page 44 of 50
course of investigation; which would amount from the time
dispute.
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73. In para 28 of the above discussed case, if a
also find force that if the shops are sold to individuals, then
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change of name of the company as M/s Ambience
was constructed in the year 2010 and the present FIR was
for shops with certain specific terms and conditions and that
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79. It is also not the case of the respondent No.2 that
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82. In view of aforementioned discussion, Criminal
any.
SURESH KAIT, J
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