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TMI Blog2021 (9) TMI 1567X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blivious 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... einafter referred to as 'fat purchaser' for short) approached the developer in and around May, 2015 and booked fat No. 1202 admeasuring 1408.089 sq. ft. carpet area, located on 12th floor 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 (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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umbai. 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 adequate 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 Ltd. vs. Union of India and another (2004) 6 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 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. (1994) 1 SCC 34 ; (II) Shanti Devi alias Shanti Mishra vs. Union of India and others (2020) 10 SCC 766 ; (III) Navinchandran N. Majithia vs. State of Maharashtra and others (2000) 7 SCC 640 ; (IV) Dhara Surbhit Barla and another vs. State of Maharashtra and another (2012) SCC Online Bom 1678 (V) State of Maharashtra vs. Narayan Shamrao Puranik and others (1982) 3 SCC 519 (VI) Sayali vs. Swapnil Manu/MH/2655/2013 (Misc.Civil Appln. 341/2013) 9. Heard learned counsel at length. 10. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 notification, establish an Authority to be known as 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 file a complaint with the Authority or the adjudicating officer, 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 dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late 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 significantly reduce frauds and delays as also the current high transaction costs. The significant 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 officer. 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 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 mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 required 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 jurisdiction by invoking the doctrine of forum conveniens." (emphasis supplied) 19. In Haji Abdul Razak Yasim Patel' case this Court in paragraph . re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ads 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellate authority is located is also forum conveniens" is not correct. (h) Any decision of this Court contrary to the conclusions enumerated herein above stands overruled. 34.Ex consequenti, 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 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. 24. There are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the developer was rendered in different set of facts. It was rendered in a fact situation where the cause of action had 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 Chari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 different 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 influence granting or refusal of parole nor does place of trial court. It is in these circumstances the Full 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umbai, 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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