Delhi High Court - Orders
Geetika Mallan & Anr vs Deputy Director, Directorate Of ... on 19 July, 2022
Author: Yashwant Varma
Bench: Yashwant Varma
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3460/2022
GEETIKA MALLAN & ANR. ..... Petitioners
Through: Mr.Viraj Datar, Sr. Adv. with
Mr.Nitish Chaudhary and Mr.Vaibhav
Kaul, Advs.
versus
DEPUTY DIRECTOR, DIRECTORATE OF ENFORCEMENT,
NEW DELHI & ORS. ..... Respondents
Through: Mr. P. V. Yogeshwaran, Adv. for ED.
CORAM:
HON'BLE MR. JUSTICE YASHWANT VARMA
ORDER
% 19.07.2022
1. Notice. Since learned counsel for the Enforcement Directorate is present reply be filed to the writ petition on or before the next date fixed.
2. The Court in its earlier order has noticed the objections taken on behalf of the Enforcement Directorate which had contended that the writ petition would not be maintainable before this Court. Reliance was also placed on the judgment rendered by the Division Bench of the Court in Aasma Mohammed Farooq Vs. Union of India [2018 SCC OnLine Del 12800].
3. Taking note of identical objections, this Court in M/S Incred Financial Services Ltd. vs. Deputy Director, Directorate of Enforcement [W.P.(C) 6354/2022] held as follows: -
"2. Having considered the aforesaid submission, the Court notes that in Aasma Mohammed Farooq the Division Bench had also noticed the Signature Not Verified Digitally Signed By:NEHA Signing Date:19.07.2022 18:23:18 judgment rendered by the Court in Vishnu Security Services Vs. Regional Provident Fund Commissioner [2012 SCC OnLine Del 1024]. Dealing with the aforesaid decision it was observed as follows:-
"9. During the course of the arguments, a reference was made to the judgment of the Coordinate Bench of this Court in Vishnu Security Services (supra), wherein the Coordinate Bench has further explained the judgment of the Five Judges in Sterling Agro Industries Ltd. (supra) and has clarified in para 11 as under:--
"11. It is thereafter that the Court went further and expounded the doctrine of forum conveniens with reference to a situation where original authority is in one State and the seat of the appellate authority is located in another State. Once it is categorically held in paras 25 to 27 that in such a case, the writ would be maintainable in both the Courts and also that it is the petitioner which has right to choose his forum, we are of the view that primacy to the freedom given to the petitioner needs to be respected. Therefore, we clarify that normally in such circumstances, writ would be maintainable at both the places and only in extreme cases where the Court finds that it is totally inconvenient for a Court to entertain the writ petition and the other High Court may be better equipped to deal with such a case then the doctrine of forum conveniens has to be applied. The directions of the Sterling Agro (supra) have to be understood in that manner alone, otherwise it would be negation of the principle stated in Kusum Ingots (supra), particularly paras 25 to 27 thereof.............."
(Emphasis provided by this Court)
10. In other words, the Division Bench clarified in a case where the original authority is in one State and the seat of the appellate authority is located in another State, a writ petition would be maintainable in both the Courts and also that it is the petitioner who has a right to choose his forum, which need to be respected. The Division Bench clarified that normally in such circumstances, writ petition would be maintainable at both the places and only in extreme cases where the Court finds that it is totally inconvenient for a Court to entertain the writ petition and the other High Court may be better equipped to deal with such a case then the doctrine of forum conveniens has to be applied."
3. Vishnu Security Services was dealing with a situation where while the original authority may have been in one State, the appellate authority was located in another. In such a situation the Court in Vishnu Signature Not Verified Digitally Signed By:NEHA Signing Date:19.07.2022 18:23:18 Security Services held that it would be open for a party to choose either of the two courts including that within whose territorial jurisdiction the appellate authority may be situate. The decision in Vishnu Security Services was noticed in Aasma Mohammed Farooq with the Division Bench agreeing with the view expressed therein and observing that only in a situation where a Court finds that it would be "totally inconvenient" to entertain the writ petition that the doctrine of forum conveniens would be liable to be invoked.
4. The Court notes that in W.P.(C) 6354/2022 an appeal has already been filed. The Tribunal is yet to be constituted and it is in the aforesaid backdrop that the petitioner has instituted the present writ petition. Insofar as W.P.(C) 7656/2022 is concerned the challenge is to the authority of the Adjudicating Authority to proceed further in terms of Section 8 of the Prevention of Money Laundering Act, 2002 [PMLA] as more than 180 days have lapsed since the passing of the provisional order of attachment. It is in that backdrop that learned has placed reliance on the decision rendered by a learned Judge of the Court in Vikas WSP and Others vs. Directorate Enforcement and Another [2020 SCC Online Del 1732]. Although the decision in Vikas WSP forms subject matter of pending LPA No. 362/2020, the Division Bench, in that appeal has also extended interim protection.
5. In view of the aforesaid facts, this Court is of the opinion that since the Appellate Forum has already been approached and the petitioner in W.P.(C) 6354/2022 stands deprived of his right to pursue the remedy available, it cannot be said that the Court would lack territorial jurisdiction.
6. Insofar as W.P.(C) 7656/2022 is concerned, the Court notes that a direct challenge is made to the Authority and jurisdiction of the Adjudicating Officer to proceed further in terms of Section 8 of the PMLA. The Adjudicating Authority is undisputedly situate within the territorial jurisdiction of this Court. The objection raised in the said writ petition would not sustain.
7. The Court notes that in any case since the respondents have failed to show at least at this stage that it would be totally inconvenient to decide the questions raised, the preliminary objection would not sustain. The issue of forum conveniens is kept open to be addressed by Mr. Hossain insofar as it arises in W.P.(C) 6354/2022.
8. For the aforesaid reasons, the objections raised are negatived. Issue notice. Since the respondents are duly represented by learned counsel, let counter affidavits be filed on or before the next date fixed."
Signature Not Verified Digitally Signed By:NEHA Signing Date:19.07.2022 18:23:184. Before this Court, Mr. Yogeshwaran, learned counsel appearing for the Directorate, does not dispute the fact that the Adjudicating Authority is situate within the territorial jurisdiction of this Court. The position in law as explained in Incred is also not disputed by learned counsel for the Directorate.
5. On merits, Mr.Viraj Datar, learned Senior Counsel, submits that the order impugned would not sustain in light of the judgment rendered by a learned Judge of the Court in Vikas WSP and Others vs. Directorate Enforcement and Another [2020 SCC OnLine Del 1732]. The Court notes that although that decision forms subject matter of challenge in LPA 362/2020, the Division Bench while entertaining that appeal has passed interim orders of protection. Matter requires consideration.
6. Pending the Tribunal taking up the appeal and any application for stay that may accompany the same for consideration, no coercive action shall be taken against the petitioners pursuant to the impugned order of 09 November 2021. The aforesaid protection shall continue till such time as the Tribunal disposes of the appeal or the stay application whichever be earlier.
7. The petitioners shall further maintain status quo insofar as possession of the attached property is concerned and shall also not create any third party rights over the properties in question nor create any fresh or further encumbrances over the same.
8. List again on 06.12.2022.
YASHWANT VARMA, J.
JULY 19, 2022/bh Signature Not Verified Digitally Signed By:NEHA Signing Date:19.07.2022 18:23:18