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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 ..... Authority' for short). 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 five 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 others 2006(1) Mh.L.J. 181 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 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 Simbha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arious forums. The Bill was introduced with a view to ensure greater accountability towards consumers, and significantly 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 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 auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remedy of preferring an 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 officer under this Act. The proviso to sub-section (5) of Section 43 says that where a promoter files an appeal with the Appellate Tribunal, it shall not be entertained, without the promoter first having deposited with the Appellate Tribunal at least 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 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 adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the doctrine of forum conveniens. 18. To decide this question, 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 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 required to be set aside and as the order of the original authority merges with tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndustrial 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 State of Maharashtra in view of the express language of clause (1) of Article 226. It makes no difference 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, verification 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alone. (f) While entertaining a writ petition, the doctrine of forum conveniens and the nature of cause of action are required 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. (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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 office. 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 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lled upon to answer a reference made with regard to a question 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 different 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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