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2018 (12) TMI 443

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..... after filing of the original complaint as contemplated under Section 5(5) of the Act before the adjudicating authority, which is located in Delhi that the impugned notice has been issued from Delhi but the fact remains that nothing has happened in Delhi. Only notice to show cause has been issued. After the adjudicating authority decides the issue, there is a forum of appeal available to the petitioner. Even thereafter, the remedy of appeal to the High Court is also available under Section 42 of the Act, which has already been enumerated above. In other words, in the case in hand, if an order is passed by the Appellate Authority it shall be the Bombay High Court, which shall have the jurisdiction for both, i.e. the person aggrieved and the Central Government against the order is passed by the Appellate Authority. Therefore, it shall be the Bombay High Court and accordingly this Court is of the view that it should not entertain the present writ petition. The petitioner shall be at liberty to approach the Bombay High Court for appropriate relief - W.P.(C) 12494/2018 & CM. Nos. 48492/2018 and 48493/2018 - - - Dated:- 5-12-2018 - MR. V. KAMESWAR RAO J. Petitioners Through: .....

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..... allow it to be filed within a further period not exceeding sixty days. Explanation .-For the purposes of this section, High Court means- (i) The High Court within the jurisdiction of which the aggrieved party ordinarily resides or carries on business or personally works for gain; and (ii) Where the Central Government is the aggrieved party, the High Court within the jurisdiction of which the respondent, or in a case where there are more than one respondent, any of the respondents, ordinarily resides or carries on business or personally works for gain. 3. She also relies upon the judgment of a Single Bench of this Court in the case of Rashmi Cement Limited v. Enforcement Directorate W.P.(Crl.) 2170/2017 decided on August 30, 2017 , wherein the learned Single Judge has considered the judgment of the Five Judges of this Court in M/s Sterling Agro Industries Ltd. (supra), Vishnu Security Services v. Regional Provident Fund Commissioner 2012 (129) DRJ 661 (DB) and the effect of Section 42 of the Act and has held that this Court ought not entertain the writ petition and if this Court assumes jurisdiction, the same would militate against the principles of f .....

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..... ed writ petitions (2018) 246 DLT 610 to contend that the Division Bench has, in the said case by relying upon paras 33(b) and (c) of the judgment held that as part of cause of action has arisen in Delhi, this Court will have jurisdiction. Insofar as Section 42 of the Act is concerned, the Division Bench held that on the existence of an alternative efficacious remedy of appeal before the High Court under Section 42, shall be decided independently by the learned Single Judge in accordance with law. 6. Suffice it to state, we have been informed by Ms. Acharya that the judgment of the Division Bench in J. Sekar (supra) has been stayed by the Supreme Court. It is also necessary to state here that the Division Bench in J. Sekar (supra) has not considered, in view of Section 42 of the Act whether this Court should exercise its discretionary jurisdiction of entertaining the petition as if an order passed by the Appellate Authority under Section 26 of the Act, the appeal thereof has to be filed wherever the aggrieved person ordinarily resides or carries on business or personally works for gain. 7. We have heard the learned counsel for the parties. At the outset, we may state .....

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..... 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 hereinabove stands overruled. 8. 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 M/s 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 .....

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..... d from Delhi but the fact remains that nothing has happened in Delhi. Only notice to show cause has been issued. After the adjudicating authority decides the issue, there is a forum of appeal available to the petitioner. Even thereafter, the remedy of appeal to the High Court is also available under Section 42 of the Act, which has already been enumerated above. In other words, in the case in hand, if an order is passed by the Appellate Authority it shall be the Bombay High Court, which shall have the jurisdiction for both, i.e. the person aggrieved and the Central Government against the order is passed by the Appellate Authority. Therefore, in view of the aforesaid factual / legal aspect, this Court is of the view that instead of two Courts considering set of facts originating in Mumbai and leading to issuance of a provisional attachment order / complaint before the adjudicating authority, it should be the High Court, which is more convenient and where if a party aggrieved against the orders passed by the Appellate Authority shall approach, in terms of Section 42 of the Act, shall be the forum conveniens . In this case, it shall be the Bombay High Court and accordingly this Court .....

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..... ter travels upto the Appellate Tribunal under Section 26 of the Act, any person aggrieved against the order of the Appellate Tribunal could approach the High Court within the jurisdiction of which the aggrieved party ordinarily resides or carries on business or personally works for gain. In case the Central Government is the aggrieved party, the High Court within the jurisdiction of which the respondent, or in a case where there are more than one respondent, any of the respondents ordinarily resides or carries on business or personally works for gain, shall have the jurisdiction. 62. In that view of the matter, the respondent would be forced to, if it is aggrieved finally by an order of the Appellate Tribunal to challenge such order before the High Court of Kolkata only whereas if the contention of the petitioner is accepted and if this Court assumes the jurisdiction of exercising its discretion, two options would be available to the petitioner namely of Kolkata High Court and Delhi High Court. This would definitely militate against the principle of forum convenience. 63. This Court, therefore, is of the view that this Court ought not to entertain the present writ petitio .....

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..... anation to the Section is extremely significant inasmuch as it prescribes that High Court means the High Court within the jurisdiction of which the aggrieved party ordinarily resides or carries on business or personally works for gain and further clarifies that if the Appeal is filed by the Central Government it is the residence or place of business of the Respondent which is the relevant and determining factor. Any lingering doubt that may remain stands dispelled by Section 35 of FEMA. 7. Therefore, on two counts this Court ought not to exercise territorial jurisdiction - firstly, on the general principles as culled out in Ambica Industries and secondly by virtue of Section 35 of FEMA. 13. We may also note, Mr. Chaudhri has also referred to the Judgment of the co-ordinate Bench of this Court in Sonu Sardar v. Union of India W.P.(Crl.) 441/2015. Suffice it to state in the facts of this case, this court has in exercise of its discretionary Jurisdiction, decided not to entertain the writ petition. The Judgment is distinguishable on facts. 14. In the end, Mr. Chaudhri would submit as this Court is not entertaining the writ petition, the interim protection granted by .....

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