IMPORTANT POINT
Agreement to sell--Non disclosure of mortgage of property--Mis-representation--Voidability of agreements without free consent--Agreement is voidable at the option of complainant--Offence of cheating not constituted.

Kanwaljit Singh Ahluwalia, J. (Oral):- Smt. Rekha Bharana wife of H.S. Bharana, resident of C-146, Sarvodya Enclave, New Delhi has filed the present petition seeking quashing of complaint (Annexure P-2) along with summoning order (Annexure P-1).

2. Before I Narrate the facts, it will be essential to take note of grievance of the complainant. The grievance of the complainant, on which the entire edifice is built, has been narrated in the concluding para No. 13 of the complaint. It will be apposite here to reproduce para 13 of the complaint:

“13. That the complainant has also suffered huge losses due to the said acts on the part of the accused. The prices of the plots in the vicinity of the plot in question has almost touched the double. The accused has taken the law in her­ own hands by stating the cancellation of the agreement to sell date 13.7.2004 of her own which she executed in favour of the complainant and also by returning the earnest money/ part payment of the plot in question to the complainant by the said Demand draft amount to Rs.2,00,000/- (Rupees Two Lacs only) while she can not return the amount of earnest money/part payment to the complainant through Demand Draft of her own in the like manner. The complainant has got a legal right to get the sale deed executed in his favour in terms of the agreement to sell dated 13.7.2004 from the accused regarding the plot in question in the office of Sub Registrar, Faridabad, and the accused has no reason or occasion to make refusal for the same.”

3. Dissection of para 13 reveals following grievances of the complainant:

(i) Complainant has suffered huge loss due to the acts on the part of the accused;

(ii) Prices of the plots in the vicinity of the plot in question have almost touched the double.

(iii) The accused has taken the law in her own hands by stating the cancellation of agreement to sell dated 13th July, 2004 of her own, which she executed in favour of the complainant and also by returning the earnest money of the plot in question to the complainant by the demand draft amounting to Rs.2,00,000/-, while she can not return the amount of earnest money through demand draft of her own in like manner.

(iv) The complainant has got a legal right to get the sale deed executed in his favour in terms of the agreement to sell dated 13th July, 2004 from the accused regarding the plot in question in the office of Sub Registrar, Faridabad and the accused has no reason or occasion to make refusal of the same.

4. Briefly stated, petitioner was the owner of property Plot No.537 situated in Sector 16-A, Faridabad measuring 500 square yards. It is averred in the complaint that accused expressed his willingness to sell the plot to the complainant and on 13th July, 2004, agreement to sell (Annexure P-3) was executed. The total amount of sale consideration arrived at was Rs.19,62,500/-. Rs.2.00 lakh was paid as earnest money. As per the agreement to sell, the sale deed was to be executed on or before 30th September, 2004. On 12th September, 2004, vide Annexure P­ 5, petitioner vide registered A.D., informed the complainant that the agreement to sell stands cancelled. Petitioner also relied upon Annexure P-4, a letter dated 15th September, 2004 addressed by the complainant to the accused, wherein it was stated that amount of sale is ready. The amount of earnest money was sent back to the complainant by way of draft (photocopy of which has been attached as Annexure P-7) and the draft was prepared on 16th October, 2004. A notice was sent by the complainant through his counsel on 11th October, 2004 (copy of which is attached as Annexure P-8), in which petitioner was called upon to redeem the mortgage of the plot and to executed the sale deed in favour of the complainant. The notice was replied back on October 18, 2004 by the counsel for the accused (copy of which has been attached as Annexure P­ 9), in which it was stated that there has been cessation of the agreement dated 8th July, 2