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2021 (9) TMI 1567 - HC - Indian LawsWaiver of pre deposit of the amount in the appeal fled against the order passed by the Maharashtra Real Estate Regulatory Authority - delay on the part of developer in completing the project due to deliberate non compliance of the obligations on his part - Section 31 of the the Real Estate (Regulations and Developments) Act 2016 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 - Doctrine of forum conveniens/non-conveniens . 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? HELD THAT - 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 file the complaint. Even the Tribunal is established only in Mumbai and therefore for the present the appeal necessarily has to be fled in Mumbai. 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 fulfilling his obligation of handing 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 squarely applied. It is in view of the provisions of the said Act which came into force with effect 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. In view of the law laid down by the Hon ble Supreme Court in Kusum Ingots Alloys Ltd. 2004 (4) TMI 342 - SUPREME COURT and the Delhi High Court in M/s. Sterling Agro Industries Ltd. 2012 (6) TMI 76 - DELHI HIGH COURT - LB 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 question. It is by virtue of the establishment of the authority and the Appellate Tribunal under the said Act that the complaint and consequently the appeal came to be fled at Mumbai. The fat purchaser booked a fat in a project undertaken by the Developer comprising five 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 office 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. 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 this order the present Petition is fled before the Principal Seat of this Court. 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 factors indicated herein before 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 there are 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 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 - 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 Court at Nagpur.
Issues Involved:
1. Legality and propriety of the Tribunal's order dated 7/4/2021. 2. Jurisdiction and application of the doctrine of forum conveniens. 3. Compliance with pre-deposit requirements under Section 43(5) of the Real Estate (Regulation and Development) Act, 2016. 4. Maintenance and appropriateness of filing the petition at the Principal Seat versus Nagpur Bench. Detailed Analysis: 1. Legality and Propriety of the Tribunal's Order: The petitioner challenged the Tribunal's order which dismissed their application for waiver of pre-deposit, a requirement under Section 43(5) of the Real Estate (Regulation and Development) Act, 2016. The Tribunal had directed the developer to deposit the entire amount as per the Authority's order, which included a refund to the flat purchaser with interest. The developer's appeal was dismissed for non-compliance with this pre-deposit requirement, which was subsequently challenged in the petition. 2. Jurisdiction and Forum Conveniens: The central issue was whether the petition should be entertained at the Principal Seat of the Bombay High Court or be transferred to the Nagpur Bench. The flat purchaser argued for Nagpur based on the convenience and the principle of "forum conveniens," given that the property and related transactions occurred in Nagpur, and the flat purchaser resided there. The developer contended that since the Tribunal's order was passed in Mumbai, the Principal Seat had jurisdiction. The court noted that while the petition was maintainable at the Principal Seat due to part of the cause of action arising in Mumbai, the doctrine of forum conveniens suggested that the Nagpur Bench was more appropriate given the facts and circumstances, including the location of the property and the residence of the flat purchaser. 3. Compliance with Pre-Deposit Requirements: The Tribunal's order under Section 43(5) of the said Act required the developer to deposit a specified amount before the appeal could be entertained. The developer's failure to comply with this requirement led to the dismissal of their appeal. The court highlighted the legislative intent behind this provision, which is to ensure accountability and reduce delays in real estate disputes, emphasizing the necessity of compliance with statutory preconditions for appeal. 4. Maintenance and Appropriateness of Filing the Petition: The court examined whether the petition should be heard at the Principal Seat or transferred to the Nagpur Bench. It concluded that the balance of convenience favored the flat purchaser, who would face hardship if the petition were heard in Mumbai. The court noted that the project, agreements, and alleged breach occurred in Nagpur, and the flat purchaser was a resident there. Consequently, the court upheld the objection to hearing the petition at the Principal Seat and recommended transferring it to the Nagpur Bench, applying the doctrine of forum non-conveniens. Conclusion: The court ordered that the petition be transferred to the Nagpur Bench, emphasizing the doctrine of forum conveniens and the balance of convenience in favor of the flat purchaser. The court also provided a temporary stay on the Authority's order for six weeks to allow for the administrative transfer of the petition.
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