Bombay High Court
Hagwood Commercial Developers Pvt Ltd vs Rahul Madhukar Deshmukh And Anr on 6 September, 2021
Author: M.S. Karnik
Bench: M.S.Karnik
WPL 15724/2021
DDR
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally
signed by
DIKSHA
ORDINARY ORIGINAL CIVIL JURISDICTION
DIKSHA DINESH
DINESH RANE
RANE Date:
2021.09.17 WRIT PETITION (L) NO. 15724 OF 2021
21:22:02
+0530
HAGWOOD COMMERCIAL DEVELOPERS
PVT. LTD. .. ..PETITIONER
VS.
RAHUL MADHUKAR DESHMUKH & ANR. ..RESPONDENTS
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Mr. Shyam Devani a/w. Hetal Thakore a/w. Mr. Nazirali Rizvi, Ms.
Heena Kapoor i/b. Dua Associates AOR, Mumbai for the petitioner.
Mr. Devendra Chauhan a/w. Mr. Filji Frederick, Mr. Chaintanya
Barve, Mr. Vinay Kumar, Mr. Ali Kazmi, Pranjal Murti, Mr. Aditya
Chaudhari, Ms. Paridhi Sachdeva and Ms. Nidhi Chauhan i/b. FF
and Associates for the respondent No.1.
Mr. Shamrao B. Gore, AGP for the respondent No. 2- State.
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CORAM : M.S.KARNIK, J.
DATE : SEPTEMBER 6, 2021
ORAL JUDGMENT :-
Invoking the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, the petitioner challenged the legality and propriety of the impugned order dated 7/4/2021 passed by the Maharashtra Real Estate Appellate Tribunal ('the Tribunal' for short) in Miscellaneous Application No. 193 of 2021 for waiver of pre deposit of the amount in the appeal fled against the order dated 16/10/2019 passed by the Maharashtra Real Estate Regulatory Authority ('the Authority' for short). 1/37 WPL 15724/2021
2. The petitioner M/s. Hagwood Commercial Developers Pvt. Ltd. (hereinafter referred to as 'developer' for short), proposed to develop a registered project in the name and style of 'Prozone Palms' at Nagpur. The developer owns around 42 acres of land at Nagpur. The developer proposed to develop approximately 400 residential apartments in fve towers on 3.5 acres portion of the said land. After obtaining all relevant permissions, the construction of the residential project started. The respondent No.1 (hereinafter referred to as 'fat purchaser' for short) approached the developer in and around May, 2015 and booked fat No. 1202 admeasuring 140...9 s..ft. carpet area, located on 12th foor of proposed Tower 'Pallazio' of 'Prozone Palms' for consideration of Rs.77,49,675/-.
3. The fat purchaser alleges delay on the part of developer in completing the project due to deliberate non compliance of the obligations on his part. The allegations of the developer are otherwise. Developer says the delay has resulted because of failure on part of the fat purchaser to make necessary payments as per agreed payment schedule.
4. The fall out resulted in a complaint under Section 31 of the the Real Estate (Regulations and Developments) Act, 2016 2/37 WPL 15724/2021 (hereinafter referred to as 'the said Act' for short) read with Rule 6 of the Maharashtra Real Estate (Regulation and Development) (Recovery of Interest, Penalty, Compensation, Fine Payable, forms of complaints and appeal etc.) Rules, 2016 (hereinafter referred to as 'the said rules' for short) fled before the Maharashtra RERA Authority under the provisions of the said Act.
5. By an order dated 16/10/2019, the 'Authority' held that the fat purchaser is entitled to get refund of consideration amount of Rs.64,97,956/- and the reimbursement of registration charges and taxes with simple interest at the rate of 10.4% from the dates of their payment till they are refunded / reimbursed. Cost of Rs.20,000/- was awarded to the fat purchaser.
6. The order of the authority was challenged by the developer before the Tribunal by way of an appeal under Section 43 of the said Act. A Miscellaneous Application for waiver of the amount directed to be refunded was fled in the appeal. By the impugned order dated 7/4/2021 the Miscellaneous Application No. 193 of 2021 for waiver was dismissed by the Tribunal. The developer was directed to deposit entire amount as per the authority's order in compliance of proviso to Section 43(5) of the said Act before 4/5/2021. The Tribunal's order was challenged before this 3/37 WPL 15724/2021 Court by way of a Second Appeal. The Second Appeal was allowed to be withdrawn with liberty to fle the Petition. This Petition challenging the impugned order is accordingly fled. During the pendency of this Petition, the appeal was dismissed for non compliance by an order dated 26/7/2021. The dismissal is also challenged by conse.uential amendments.
7. An objection is raised by the fat purchaser's counsel Mr. Chauhan that having regard to the principle of "Forum Conveniens", that though the Petition is maintainable at the Principal Seat, the same should not be entertained and instead the Petition be returned for presenting the same before the Nagpur Bench of this Court for disposal on merits. The submissions of learned counsel for the fat purchaser are :
(a) The 'Authority' as well as the Tribunal being statutory Forum under the provisions of the said Act and Rules framed thereunder, the fat purchaser had to fle the complaint at the place where the authority is established i.e. in Mumbai. The property developed and the subject fat is situated in Nagpur.
The entire project undertaken by the developer where the fat is purchased is at Nagpur. The Flat Purchasers Agreement is executed at Nagpur. The payments towards consideration of the said fat were made at Nagpur. The payments are accepted at 4/37 WPL 15724/2021 Nagpur. The major part of cause of action thus arose in Nagpur. The fat purchaser succeeded in the complaint fled before the Authority. As the Tribunal is established in Mumbai, the statutory appeal is preferred by developer at Mumbai. The Tribunal which passed the impugned order is situated within the territorial jurisdiction of the Principal Seat and hence part of the cause of action arises within jurisdiction of the Principal Seat. The passing of an order by the Tribunal within the territorial limits of the Principal Seat by itself cannot be the determining factor compelling the Principal Seat of this Court to entertain the matter on merits. While exercising jurisdiction under Articles 226 and 227 of the Constitution of India, the Court cannot be totally oblivious of the concept of forum conveniens. The concept of forum conveniens fundamentally means that it is obligatory on the part of the court to see the convenience of all the parties before it. A big time developer who has undertaken such a massive project, having ade.uate means and resources to litigate at either of the Benches, is pitted against a fat purchaser who will face hardship contesting the matter in this Court, despite existence of a more appropriate forum of the Nagpur Bench of this Court. Reliance is placed on the decisions of the Hon'ble Supreme Court in the case of Kusum Ingots & Alloys 5/37 WPL 15724/2021 Ltd. vs. Union of India and another1 and that of the Delhi High Court in the case of M/s. Sterling Agro Industries Ltd. vs. Union of India & ors.2 in support of the fat purchaser's objection.
.. On the other hand, dealing with this objection, Shri Dewani appearing on behalf of the developer submits thus :-
(a) The Tribunal which passed the impugned order is situated in Mumbai and therefore the Principal Seat will have territorial jurisdiction to entertain and dispose of the Petition. The complaint before the Authority was fled by the fat purchaser in Mumbai. Even the Tribunal where the appeal is preferred by the developer is situated in Mumbai. The place where the impugned order is passed determines the cause of action. As the impugned order is passed in Mumbai, it is the Principal Seat at Bombay which has jurisdiction to entertain the Petition. Relying on the proviso of Rule 1 of Chapter XXXI of the Bombay High Court Appellate Side Rules, 1960 (hereinafter referred to as 'the Appellate Side Rules"), it is only the Chief Justice, who may in his discretion, order that any case presented at Bombay be heard at Nagpur. The developer is from Mumbai having a registered ofce in Mumbai. The Tribunal is situated in Mumbai. It is not only the 1 (2004) 6 SCC 254 2 ILR (2011) VI Delhi 729 6/37 WPL 15724/2021 convenience of the fat purchaser but even the convenience of the developer as well as that of the Tribunal where records and proceedings are available has to be kept in mind. As the impugned order is passed at Mumbai, major part of cause of action has arisen in the territorial jurisdiction of the Principal Seat and hence the Petition can be heard and disposed on merits by the Principal Seat of this Court. The fat purchaser has necessary means and resources to attend the proceedings in Mumbai. The proceedings are initiated and presented in Mumbai. The application for waiver is opposed before the Tribunal, by the fat purchaser at Mumbai. No contention of inconvenience was ever raised before the Authority or the Tribunal. The objection to entertain the Petition on the ground of forum conveniens deserves to be rejected. Reliance is placed on the decision of the Hon'ble Supreme Court in the case of Kusum Ingots & Alloys Ltd. (supra). The decision of this Court in the case of Haji Abdul Razak Yasim Patel vs. Bara Imam Masjid Trust and others3 is relied upon to submit that it is not the place where the properties are situated but the place where the impugned order is passed which will determine the territorial jurisdiction of the Principal Seat. What is relevant is the place where the impugned order was passed and not where the properties are located to 3 2006(1) Mh.L.J. 181 7/37 WPL 15724/2021 determine the territorial jurisdiction. The location of the properties would not, in a case like this, determine the jurisdiction, since the properties may be located in Nagpur but the impugned order has been passed in Mumbai and hence the Petition can be entertained by the Principal Seat. Learned counsel also relied upon the various following other decisions :
(I) Stridwell Leathers (P) Ltd. and others vs. Bhankerpur Simbhaoli Beverages (P) Ltd. and others.4 ; (II) Shanti Devi alias Shanti Mishra vs. Union of India and others5 ;
(III) Navinchandran N. Majithia vs. State of Maharashtra and others6 ;
(IV) Dhara Surbhit Barla and another vs. State of Maharashtra and another7 (V) State of Maharashtra vs. Narayan Shamrao Puranik and others8 (VI) Sayali vs. Swapnil9
9. Heard learned counsel at length.
4 (1994) 1 SCC 34 5 (2020) 10 SCC 766 6 (2000) 7 SCC 640 7 (2012) SCC Online Bom 1678 8 (1982) 3 SCC 519 9 Manu/MH/2655/2013 (Misc.Civil Appln. 341/2013) 8/37 WPL 15724/2021
10. Whether the objection of the fat purchaser that the present Petition should not be entertained at the Principal Seat on merits and instead returned to the developer for presenting the same before the Nagpur Bench to be disposed of deserves to be upheld is the moot .uestion.
11. In the context of the present controversy, it is necessary to highlight the salient features of the said Act. The Preamble of the said Act provides that the Real Estate (Regulation And Development) Act, 2016 is an Act to establish the Real Estate Regulatory Authority for regulation and promotion of the real estate sector and to ensure sale of plot, apartment or building, as the case may be, or sale of real estate project, in an efcient and transparent manner and to protect the interest of consumers in the real estate sector and to establish an adjudicating mechanism for speedy dispute redressal and also to establish the Appellate Tribunal to hear appeals from the decisions, directions or orders of the Real Estate Regulatory Authority and the adjudicating ofcer and for matters connected therewith or incidental thereto. The statement of objects and reasons provide that the real estate sector plays a catalytic role in fulflling the need and demand for housing and infrastructure in the country. While this sector has grown signifcantly in recent years, it has 9/37 WPL 15724/2021 been largely unregulated, with absence of professionalism and standardisation and lack of ade.uate consumer protection. Though the Consumer Protection Act, 19.6 is available as a forum to the buyers in the real estate market, the recourse is only curative and is not ade.uate to address all the concerns of buyers and promoters in that sector. The lack of standardisation has been a constraint to the healthy and orderly growth of industry. Therefore, the need for regulating the sector has been emphasised in various forums. The Bill was introduced with a view to ensure greater accountability towards consumers, and signifcantly reduce frauds and delays as also the current high transaction costs. It attempts to balance the interests of consumers and promoters by imposing certain responsibilities on both. It seeks to establish symmetry of information between the promoter and purchaser, transparency of contractual conditions, set minimum standards of accountability and a fast-track dispute resolution mechanism.
12. Chapter V of the said Act deals with the establishment and incorporation of Real Estate Regulatory Authority. Sub-section (1) of Section 20 provides that the appropriate Government shall, within a period of one year from the date of coming into force of this Act, by notifcation, establish an Authority to be known as 10/37 WPL 15724/2021 the Real Estate Regulatory Authority to exercise the powers conferred on it and to perform the functions assigned to it under this Act. The proviso empowers the appropriate Government, which may, if it deems ft, establish more than one Authority in a State or Union territory, as the case may be. Section 31 provides for mechanism of fling of complaints with the authority or adjudicating authority. Sub-section (1) of the Section 31 provides that any aggrieved person may fle a complaint with the Authority or the adjudicating ofcer, as the case may be, for any violation or contravention of the provisions of this Act or the rules and regulations made thereunder against any promoter allottee or real estate agent, as the case may be. Section 35 provides for the powers of authority to call for information and conduct investigations. Section 36 empowers the authority to issue interim orders during an in.uiry if the Authority is satisfed that an act in contravention of this Act, or the rules and regulations made thereunder, has been committed and continues to be committed or that such act is about to be committed, the Authority may, by order, restrain any promoter, allottee or real estate agent from carrying on such act until the conclusion of such in.uiry of until further orders, without giving notice to such party, where the Authority deems it necessary. Section 37 authorises the authority for the purpose of discharging its 11/37 WPL 15724/2021 functions under the provisions of this Act or rules or regulations made thereunder, to issue such directions from time to time, to the promoters or allottees or real estate agents, as the case may be, as it may consider necessary and such directions shall be binding on all concerned. Section 3. empowers the authority to impose penalty or interest, in regard to any contravention of obligations cast upon the promoters, the allottees and the real estate agents, under this Act or the rules and the regulations made thereunder. Section 40 provides for a mechanism for recovery of interest or penalty or compensation and enforcement of orders passed.
13. Chapter VII of the said Act deals with the provisions regarding the establishment of the Real Estate Appellate Tribunal. Section 43 provides that the appropriate Government shall, within a period of one year from the date of coming into force of this Act, by notifcation, establish an Appellate Tribunal to be known as the "name of the State/Union territory" Real Estate Appellate Tribunal. Sub-section (2) of Section 43 provides that the appropriate Government may, if it deems necessary, establish one or more benches of the Appellate Tribunal, for various jurisdictions, in the State or Union territory, as the case may be. Sub-section (5) of Section 43 provides a remedy of preferring an 12/37 WPL 15724/2021 appeal before the Appellate Tribunal having jurisdiction over the matter by any person aggrieved by any direction or decision or order made by the Authority or by an adjudicating ofcer under this Act. The proviso to sub-section (5) of Section 43 says that where a promoter fles an appeal with the Appellate Tribunal, it shall not be entertained, without the promoter frst having deposited with the Appellate Tribunal atleast 30% of the penalty, or such higher percentage as may be determined by the Appellate Tribunal, or the total amount to be paid to the allottee including interest and compensation imposed on him, if any, or with both, as the case may be, before the said appeal is heard.
14. Thus, the said Act is brought into force in the year 2016 to provide for greater accountability towards consumers, and signifcantly reduce frauds and delays as also the current high transaction costs. The signifcant feature of the said Act is establishing an adjudicating mechanism for speedy dispute redressal and also to establish the Appellate Tribunal to hear appeals from the decisions, directions or orders of the Real Estate Regulatory Authority and the adjudicating ofcer. In view of the mandate of Section 20, the appropriate Government, in the present case the State Government, has established the 'Authority' at Mumbai. As indicated earlier, the proviso to 13/37 WPL 15724/2021 Section 20 empowers the appropriate Government to establish more than one authority in the State. As of now the authority is established in Mumbai. Even in so far as the Appellate Tribunal is concerned, the proviso to Section 43 empowers the appropriate Government i.e. the State Government in the present case to establish one or more Benches of the Appellate Tribunal, for various jurisdiction, in the State. Presently the Tribunal is established in Mumbai.
15. In the present case, though the entire cause of action has arisen in Nagpur, by virtue of the provisions of the Act, it is only at Mumbai where the authority is situated that the fat purchaser can fle the complaint. Even the Tribunal is established only in Mumbai and therefore, for the present, the appeal necessarily has to be fled in Mumbai.
16. The object of the said Act is to ensure a speedy mechanism for resolution of the disputes. The fat purchaser therefore fled a complaint before the 'Authority' in Mumbai. The complaint was decided in his favour and the developer was directed to refund the consideration paid with interest. As the Tribunal is established and situated in Mumbai, the developer fled an appeal under 14/37 WPL 15724/2021 Section 43 (5) of the said Act before the Appellate Tribunal in Mumbai. An application for waiver of the amounts directed to be refunded by the authority was made. The Appellate Tribunal rejected the interim application made for waiver and directed the developer to deposit the entire amount within the time stipulated as a precondition to hearing the appeal.
17. This Petition challenging the order of the Tribunal is fled under the provisions of Articles 226 and 227 of the Constitution of India before the Principal Seat of this Court. Reading of the provisions of the Articles 226 and 227 leave no manner of doubt that as the impugned order has been passed at Mumbai, indisputably, a part of cause of action arises in Mumbai. The present Petition, therefore, is maintainable at the Principal Seat of this Court. Even the counsel for fat purchaser does not dispute this. The .uestion is, whether this an appropriate case, for this Court to refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.
1.. To decide this .uestion, at this juncture, a useful reference needs to made to paragraph Nos. 10, 27 and 30 in Kusum Ingots & Alloys Ltd.'s case where Their Lordships held thus :
"10. Keeping in view the expressions used is Clause (2) of 15/37 WPL 15724/2021 Article 226 of the Constitution of India, indisputably even if a small fraction of cause of action accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter.
27. When an order, however, is passed by a Court or Tribunal or an executive authority whether under provisions of a statute or otherwise, a part of cause of action arises at that place. Even in a given case, when the original authority is constituted at one place and the appellate authority is constituted at another, a writ petition would be maintainable at both the places. In other words, as order of the appellate authority constitutes a part of cause of action, a writ petition would be maintainable in the High Court within whose jurisdiction it is situate having regard to the fact that the order of the appellate authority is also re.uired to be set aside and as the order of the original authority merges with that of the appellate authority.
30. We must, however, remind ourselves that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary 16/37 WPL 15724/2021 jurisdiction by invoking the doctrine of forum conveniens."
(emphasis supplied)
19. In Haji Abdul Razak Yasim Patel' case this Court in paragraph . referred to sub-rule (1) of rule 1 of Chapter XVII of the Appellate Side Rules, which reads as follows :
"1(1) Applications for issue of writs, directions, etc. under Article 226 of the Constitution. - Every application for the issue of a direction, order or writ under Article 226 of the Constitution shall, if the matter in dispute is or has arisen substantially outside Greater Bombay, be heard and disposed of by a Division Bench to be appointed by the Chief Justice. The application shall set out therein the relief sought and the grounds on which it is sought, it shall be solemnly afrmed or supported by an afdavit. In every such application, the applicant shall state whether he has made any other application to the Supreme Court or the High Court in respect of the same matter and how that application has been disposed of."
Further, for purpose of this Petition it is material to consider Rule (1) of Chapter XXXI of the Appellate Side Rules which reads as follows :
17/37 WPL 15724/2021
"1. Presentation of matters at Nagpur, Aurangabad and Goa. - All appeals, applications, references and petitions including petitions for exercise of powers under Articles 226 and 227 of the Constitution arising in the Judicial Districts of Akola, Amravati, Bhandara, Buldhana, Chandrapur, Nagpur, Wardha, Yavatmal and Gadchiroli which lie to the High Court of Bombay shall be presented to the Additional Registrar of that High Court at Nagpur and shall be disposed of by the Judges sitting at Nagpur :
Provided that the Chief Justice may, in his discretion, order that any case arising in any such District shall be heard at Bombay ;
Provided further that the Chief Justice may, in his discretion, order that any case presented at Bombay be heard at Nagpur."
Further in paragraph 15 it is observed thus :
"15. It must be made clear that as observed by the Division Bench in Nitin Industrial Associates (supra), the jurisdiction of the Court is co-terminus with the territory of the State. Therefore, as a matter of law, the litigants would be entitled to invoke the jurisdiction of the Principal Seat of any Bench in respect of any matter arising anywhere in the 18/37 WPL 15724/2021 State of Maharashtra in view of the express language of clause (1) of Article 226. It makes no diference if the jurisdiction of the Court under Article 227 is invoked since clause (1) of Article 227 is couched in similar language. It reads as follows:-
"Art. 227. (1) Every High Court shall have superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction ."
(Emphasis supplied) However, having regard to the High Court (Appellate Side) Rules, the Benches of the Principal Seat would be extremely slow in entertaining matters which have arisen within the ordinary territorial jurisdiction of another Bench."
20. In view of sub-rule (1) of Rule 1 of Chapter XXXI of the Appellate Side Rules, all Petitions under Articles 226 and 227 arising in the District of Nagpur which lie to the High Court of Bombay shall be presented to the Additional Registrar of that High Court at Nagpur and shall be disposed of by the Judges sitting at Nagpur. The cause of action is in respect of a failure on the part of the developer in fulflling his obligation of handing 19/37 WPL 15724/2021 over the fat in terms of the Flat Purchasers Agreement to the fat purchaser within the time stipulated. Prior to the coming into force of the said Act and the Rules framed thereunder, for breach of obligation on the part of the developer, the fat purchaser would have had to invoke remedies before the Civil Court situated within the territorial jurisdiction of the place where the project is situated i.e. at Nagpur. Section 16 of the Code of Civil Procedure then would have s.uarely applied. It is in view of the provisions of the said Act which came into force with efect from 26/3/2016 and the Rules framed thereunder that the fat purchaser could avail of the speedy mechanism provided under the said Act for redressal.
21. To deal with the objection of forum non conveniens, a proftable reference may be had to the decision in Union of India vs. Adani Exports Ltd.10 where Their Lordships in paragraphs 2. and 29 proceeded to observe thus :
"2.. We have referred to the scope of jurisdiction under Articles 226 and 227 of the Constitution only to highlight that the High Courts should not ordinarily interfere with an order taking cognisance passed by a competent court of law except in a proper case. Furthermore only such High 10 (2002) 1 SCC 567 20/37 WPL 15724/2021 Court within whose jurisdiction the order of the subordinate court has been passed, would have the jurisdiction to entertain an application under Article 227 of the Constitution unless it is established that the earlier cause of action arose within the jurisdiction thereof.
29. The High Courts, however, must remind themselves about the doctrine of forum non conveniens also."
(emphasis supplied)
22. A useful reference needs to made to the Delhi High Court decision in M/s. Sterling Agro Industries Ltd. (supra). Their Lordships had an occasion to consider the doctrine of 'forum conveniens' in some detail. It is relevant to refer to paragraph 30, 31, 32, 33 and 34 which reads thus :
"30. From the aforesaid pronouncements, the concept of forum conveniens gains signifcation. In Black's Law Dictionary, forum conveniens has been defned as follows: "The court in which an action is most appropriately brought, considering the best interests and convenience of the parties and witnesses."
31. The concept of forum conveniens fundamentally means that it is obligatory on the part of the court to 21/37 WPL 15724/2021 see the convenience of all the parties before it. The convenience in its ambit and sweep would include the existence of more appropriate forum, expenses involved, the law relating to the lis, verifcation of certain facts which are necessitous for just adjudication of the controversy and such other ancillary aspects. The balance of convenience is also to be taken note of. Be it noted, the Apex Court has clearly stated in the cases of Kusum Ingots (supra), Mosaraf Hossain Khan (supra) and Ambica Industries (supra) about the applicability of the doctrine of forum conveniens while opining that arising of a part of cause of action would entitle the High Court to entertain the writ petition as maintainable.
32. The principle of forum conveniens in its ambit and sweep encapsulates the concept that a cause of action arising within the jurisdiction of the Court would not itself constitute to be the determining factor compelling the Court to entertain the matter. While exercising jurisdiction under Articles 226 and 227 of the Constitution of India, the Court cannot be totally oblivious of the concept of forum conveniens. 22/37 WPL 15724/2021 The Full Bench in New India Assurance Co. Ltd.
(supra) has not kept in view the concept of forum conveniens and has expressed the view that if the appellate authority who has passed the order is situated in Delhi, then the Delhi High Court should be treated as the forum conveniens. We are unable to subscribe to the said view.
33. In view of the aforesaid analysis, we are inclined to modify the fndings and conclusions of the Full Bench in New India Assurance Company Limited (supra) and proceed to state our conclusions in seriatim as follows :
(a) The fnding recorded by the Full Bench that the sole cause of action emerges at the place or location where the tribunal/appellate authority/revisional authority is situate and the said High Court (i.e., Delhi High Court) cannot decline to entertain the writ petition as that would amount to failure of the duty of the Court cannot be accepted inasmuch as such a fnding is totally based on the situs of the tribunal/appellate authority/revisional authority totally ignoring the concept of 23/37 WPL 15724/2021 forum conveniens.
(b) Even if a miniscule part of cause of action arises within the jurisdiction of this court, a writ petition would be maintainable before this Court, however, the cause of action has to be understood as per the ratio laid down in the case of Alchemist Ltd. (supra).
(c) An order of the appellate authority constitutes a part of cause of action to make the writ petition maintainable in the High Court within whose jurisdiction the appellate authority is situated. Yet, the same may not be the singular factor to compel the High Court to decide the matter on merits. The High Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.
(d) The conclusion that where the appellate or revisional authority is located constitutes the place of forum conveniens as stated in absolute terms by the Full Bench is not correct as it will vary from case to case and 24/37 WPL 15724/2021 depend upon the lis in .uestion.
(e) The fnding that the court may refuse to exercise jurisdiction under Article 226 if only the jurisdiction is invoked in a malafde manner is too restricted/constricted as the exercise of power under Article 226 being discretionary cannot be limited or restricted to the ground of malafde alone.
(f) While entertaining a writ petition, the doctrine of forum conveniens and the nature of cause of action are re.uired to be scrutinized by the High Court depending upon the factual matrix of each case in view of what has been stated in Ambica Industries (supra) and Adani Exports Ltd. (supra).
(g) The conclusion of the earlier decision of the Full Bench in New India Assurance Company Limited (supra) "that since the original order merges into the appellate order, the place where the appellate authority is located is also forum conveniens"
is not correct.
25/37 WPL 15724/2021
(h) Any decision of this Court contrary to the conclusions enumerated hereinabove stands overruled.
34. Ex conse.uenti, we answer the reference by partially overruling and clarifying the decision in New India Assurance Company Limited (supra) in the above terms. Matters be listed before the appropriate Division Bench for appropriate consideration."
23. In view of the law laid down by the Hon'ble Supreme Court in Kusum Ingots & Alloys Ltd. (supra) and the Delhi High Court in M/s. Sterling Agro Industries Ltd. (supra), undoubtedly, in view of the order having been passed by the Tribunal at Mumbai, the Writ Petition is maintainable before the Principal Seat. Yet this cannot be single factor to compel this Court to decide the matter on merits. Whether the place where the appellate or revisional authority is located constitutes the place of forum conveniens will vary from case to case and depends upon the lis in .uestion. It is by virtue of the establishment of the authority and the Appellate Tribunal under the said Act, that the complaint and conse.uently the appeal came to be fled at Mumbai.
26/37 WPL 15724/2021
24. There are no two ways that as the impugned order is passed by the statutory Appellate Tribunal in Mumbai, the part cause of action has arisen in Mumbai and hence this Writ Petition is maintainable before the Principal Seat. I am, however, not inclined to entertain the present Writ Petition on merits, as in the facts of the present case, this Court cannot be oblivious of the concept of forum conveniens. As observed by Their Lordships in the case of M/s. Sterling Agro Industries Ltd. (supra), which I am inclined to follow, the convenience in its ambit and sweep would include the existence of more appropriate forum, expenses involved, the law relating to the lis, verifcation of certain facts which are necessitous for just adjudication of the controversy and such other ancillary aspects. The balance of convenience is also to be taken note of.
25. In the present case, the balance of convenience is, in my opinion, clearly in favour of the fat purchaser. The project is being constructed in Nagpur. The Flat Purchasers Agreement is entered into at Nagpur. The payments are made in Nagpur. The breach of obligation as alleged by the fat purchaser in completing the project within time is at Nagpur. The fat purchaser is resident of Nagpur. By virtue of speedy mechanism provided to redress the grievance of the fat purchasers under 27/37 WPL 15724/2021 the said Act, the fat purchaser had to approach the authority which is established by the State Government at Mumbai. Having succeeded before the authority, in the light of the provision establishing the Appellate Tribunal at Mumbai, the fat purchaser had to defend the application for exemption made in the appeal at Mumbai. After passing of the impugned order rejecting the application for exemption in the appeal fled, the developer fles the Writ Petition before the Principal Seat of this Court.
26. Passing of the order by the Appellate Tribunal which is situated in Mumbai cannot be considered to be a determinative factor compelling this Court to decide the matter on merits. It is not as if the developer is going to be inconvenienced in any manner as in any case he has undertaken a project of sizable magnitude in Nagpur which also has a site ofce. If the convenience of all the parties is considered, it is the fat purchaser who will be inconvenienced most in the facts of the present case.
27. The decision in Haji Abdul Razak Yasim Patel's case relied by the developer was rendered in diferent set of facts. It was rendered in a fact situation where the cause of action had 28/37 WPL 15724/2021 almost wholly arisen within the jurisdiction of the Appellate Side of the Principal Seat of this Court at Bombay since the only action challenged was refusal of permission at Pune by the Joint Charity Commissioner under section 36 of the Mumbai Public Trust Act. This Court held that in a case such as this, wherever the property may be located, the parties would be entitled to approach the Principal Seat or the Bench of this Court within whose ordinary territorial limits the impugned order has been passed, since clearly the impugned order would be a material part of the cause of action. It was observed that the locus of the properties would not, in such a case, determine the jurisdiction since the properties in respect of which the trust seeks permission to alienate may be located at several places within Maharashtra. This Court also applied the test in J.K. Dadlani v. B.M. Kantawala reported in AIR 1991 102 to hold that the impact of the order, at least a material part thereof, if the petitions succeed, would certainly be at Pune since the decision of the Charity Commissioner at Pune would be set aside. His Lordship further went on to observe that even if the order would afect properties at Ahmednagar it would not be determinative of the matter, since, in a given matter, the trust may hold properties at several places within the State.
29/37 WPL 15724/2021
2.. The decision in Haji Abdul Razak Yasim Patel's case will not apply in the present facts for reasons more than one. The RERA Act is intended to provide a forum for speedy redressal or those seeking redressal. The fat in .uestion in respect of which the complaint is fled is situated in a project which is at Nagpur. Moreover, Clause 63 of the Flat Purchasers Agreement provides that any disputes in relation to this agreement, shall be subject to the exclusive jurisdiction of Courts at Nagpur. The dispute is a conse.uence of alleged failure on the part of the developer in handing over the fat situated at Nagpur though substantial consideration was paid by the fat purchaser to the developer. In this case, almost the entire cause of action has arisen at Nagpur. It is the passing of the impugned order by the Statutory Tribunal situated in Mumbai which resulted in part of the cause of action arising in Mumbai. It is necessary to consider the factum of hardship and inconvenience to any of the parties having regard to the nature of the legislation. As observed earlier, the Petition is maintainable at the Principal Seat as well as the Nagpur Bench. Therefore the decision in Haji Abdul Razak Yasim Patel's case has no application to the present case, though the impugned order is passed by the Tribunal situated within the territorial jurisdiction of the Principal Seat.
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29. Let me now consider the decision of the Full Bench of this Court in the case of State of Maharashtra vs. Guddu @ Kansha Wahab Shaikh reported in 2021 (2) Mh.L.J.341 relied upon by the developer. In Guddu's case the Full Bench was called upon to answer a reference made with regard to a .uestion as to whether a convict/prisoner can challenge the rejection of his parole application, only before the Forum of this Court having jurisdiction over the district in which the rejection order was passed and is precluded from approaching the bench having jurisdiction over the district in which the Trial Court convicting him/her is situated ? Their Lordships held that parole is to be considered on diferent parameters, which hardly have anything to do with the conviction of a prisoner or place of court convicting him. It held that there is no mutuality between place of court convicting and grant or refusal of parole. Conviction occurs in entirely diferent dominion and the dominion of operation of rules for parole is separate and apart and does not appear to be related in any way save that parole is available under the rules to a convict pursuant to the criteria referred to; beyond that, conviction or for that matter place of court convicting the prisoner has no role. Their Lordships further held that conviction does not infuence granting or refusal of parole nor does place of trial court. It is in these circumstances the Full 31/37 WPL 15724/2021 Bench held that there does not appear to be any nexus between grant or refusal of parole and place of court convicting, ordinarily a prisoner/convict would have to approach a forum of this court having jurisdiction over the district in which order of rejection is passed. This Court further held that a convict/prisoner is not precluded from approaching the bench having jurisdiction over the district in which trial court has convicted him, if the order of rejection of parole is passed in the area of jurisdiction of forum whereunder conviction has taken place or if a nexus between refusal to grant parole and conviction could reasonably and validly be said to exist. In the later case, the Full Bench held that it could always be open in rare and exceptional cases for the Bench before which the proceeding is presented to examine the plea at the threshold and decide whether to receive the proceedings or not. It is in these circumstances the Full Bench has answered the reference that ordinarily a prisoner/convict would have to approach a forum of this court having jurisdiction over the district in which order of rejection is passed. In my considered opinion, the decision in Guddu's case is distinguishable on facts.
30. The other decisions relied upon by the developer are on merits of the controversy. I have not gone into the merits hence 32/37 WPL 15724/2021 the said decisions are not dealt with.
31. The upshot of the above discussion is the fat purchaser booked a fat in a project undertaken by the Developer comprising fve towers having approximately 400 residential tenements situated at Nagpur by agreement for sale dated May 15, 2015 valued at Rs.77,49,675/-. The fat purchaser paid consideration amount of Rs.64,97,956/-. The agreement for sale records that the site ofce of the developer is at Nagpur. The fat purchaser is a resident of Nagpur. The entire payments are made and accepted at Nagpur. Clause 63 of the sale agreement states that any disputes in relation to the agreement, shall be subject to the exclusive jurisdiction of Courts at Nagpur, India. The cause for fling of a complaint under Section 31 of the said Act was a result of breach of the obligation on the part of the developer in handing over possession of the fat within the stipulated time to the fat purchaser. Though the said Act empowers appropriate Government to establish more than one 'Authority' and the 'Tribunal', for the present, the Tribunal as well as the Authority is established and functioning only at Mumbai.
32. Now a reference to Section 16 of the Code of Civil Procedure. Section 16 provides that subject to the pecuniary and 33/37 WPL 15724/2021 other limitation prescribed in law, suits of the nature mentioned in Section 16(a) to (f) shall be instituted in the Court within the local limits of whose jurisdiction the property is situated. As the impugned order is passed by the Tribunal which is situated in Mumbai, undoubtedly the present Petition is maintainable as part of the cause of action has arisen within the territorial jurisdiction of the Principal Seat. The principle contained in Section 16 of Code of Civil Procedure that the suit shall be instituted in the Court within the local limits of whose jurisdiction the property is situated will have to be borne in mind, though Section 16 may not apply in the present facts. This Petition under Articles 226 and 227 of the Constitution of India undoubtedly is maintainable before either of the Benches viz. Principal Seat at Bombay or the Bench of this Court at Nagpur also in view of the Appellate Side Rules. This Court cannot, however, be oblivious to the hardship and inconvenience that the fat purchaser will have to face in contesting the Petition at Mumbai. The fat purchaser succeeded before the Authority, whereby, the developer has been directed to refund the consideration amount paid along with interest. In an appeal fled by the developer before the Tribunal, the fat purchaser contested the Miscellaneous Application made for waiver of the pre-deposit for entertaining the appeal. Even the application for waiver has been rejected by the Tribunal. Against 34/37 WPL 15724/2021 this order, the present Petition is fled before the Principal Seat of this Court.
33. In respect of a project of this big magnitude which is situated in Nagpur district; the agreement for sale whereof is registered at Nagpur; the entire consideration is paid at Nagpur; the fat purchaser is resident of Nagpur; the developer has a site ofce at Nagpur ; the breach of obligation alleged has arisen at Nagpur, in my opinion, it is appropriate if the Nagpur Bench of this Court entertains this Petition instead of the Principal Seat. This is a ft case where due regard will have to be given to the inconvenience of the fat purchaser and the hardship faced by him, if the present Petition is entertained, in the interest of justice. To my mind, the doctrine of 'forum non-conveniens' applies in full vigor in the present facts and in favour of the fat purchaser. This Court cannot be oblivious to the plight of the fat purchaser and the resultant hardships that would be caused to him, for even this Petition is fled challenging an interim order of predeposit as a condition for hearing of appeal by the Tribunal. As a result of non compliance, the order of dismissal of appeal is now challenged. On the contrary, no inconvenience would be caused to the developer if the Petition is presented for being heard by the Bench of this Court at Nagpur, for apart from the 35/37 WPL 15724/2021 factors indicated hereinbefore, even Clause 63 of the agreement for sale stipulates that in case of dispute, the Courts at Nagpur will have jurisdiction. If by upholding the objection of the fat purchaser results in providing some succour to him, present is a case where I have no hesitation in refusing to entertain the Petition on merits applying the Doctrine of 'forum conveniens/non-conveniens'. The balance of convenience is clearly in favour of the fat purchaser. The submission of learned counsel that the convenience of the Tribunal will also have to be factored in, is a submission which can only be stated to be rejected. Once the Petition is held to be maintainable at either of the Benches, this objection of the developer need not detain me any further. I therefore have no hesitation in upholding the objection of the fat purchaser. Hence, the following order.
ORDER
(i) The objection of the Petitioner that the present Petition should not be entertained at the Principal Seat as it will be more appropriate for the Nagpur Bench of this Court to hear the Petition is upheld.
(ii) The proceedings in this Petition be placed before the Hon'ble Chief Justice on the administrative side for His Lordship's consideration for transferring the Petition to the Bench of this 36/37 WPL 15724/2021 Court at Nagpur.
(iii) At the re.uest of the Petitioner, in the interest of justice, for a period of six weeks from today, the order of the Authority impugned before the Tribunal, not to be acted upon.
34. Order accordingly. No order as to costs.
(M.S. KARNIK, J.) 37/37