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2018 (12) TMI 443

Maintainability of the petition - Appeal to High Court - whether this Court would not like to entertain the petition as the same would militate against the principles of forum convenient, and also in view of Section 42 of The Prevention of Money-Laundering Act, 2002 - jurisdiction of High Court - Held that:- Mr. Chaudhri may be right in contending that the notice under Section 8 of the Act has been issued by the Authority in Delhi, so jurisdiction is there for this Court to entertain the writ pe .....

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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 shou .....

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2 ( Act in short). She has drawn our attention to the judgment of Five Judges of this Court in the case of M/s Sterling Agro Industries Ltd. v. Union of India & Ors. ILR (2011) VI Delhi 729 to contend that even if the impugned order has been issued by an Authority and the same constitutes a part of cause of action to make the writ petition maintainable in this Court, yet the same may not be a singular factor for this Court to decide the matter on merits and this Court can refuse to exercise .....

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is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, 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 whi .....

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ein the Division Bench relying upon a similar provision under the FEMA Act, refused to exercise its jurisdiction and relegated the petitioner to the appropriate High Court on the ground of forum conveniens of that Court and also in view of Section 35 of the FEMA Act, which clearly stipulates that any person aggrieved by any decision or order of the Appellate Tribunal to file an appeal to High Court where the aggrieved party ordinarily resides or carries on business or personally works for gain. .....

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thority, based in Delhi. In other words, a part of cause of action has arisen in Delhi, for this Court to entertain the present writ petition, in terms of Para 33 (b) of the Sterling Agro Industries Ltd. (supra). 5. It is his submission that cause of action in PMLA cases, is not related to the place of investigation or place of a property and as such the plea of Ms. Acharya that investigation has been done in Mumbai and properties are in Mumbai and the Bombay High Court shall have the jurisdicti .....

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ts 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 that the Five Judges of this Court in M/s Sterling Agro Industries Ltd. (supra) by considering the case law on the subject of jurisdiction and f .....

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id 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 appe .....

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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. I .....

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principle stated in Kusum Ingots (supra), particularly paras 25 to 27 thereof.............. (Emphasis provided by this Court) 9. In other words, the Division Bench clarified in a case where the original authority is in one State and the seat of the appellate authority is located in another State, a writ petition would be maintainable in both the Courts and also that it is the petitioner who has a right to choose his forum, which need to be respected. The Division Bench clarified that normally in .....

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s all the facts that have arisen in Mumbai. The properties are in Mumbai. It is only 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 ther .....

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not entertain the present writ petition. The petitioner shall be at liberty to approach the Bombay High Court for appropriate relief. Accordingly, we refrain from going into the merits of the case. 11. We agree with the conclusion arrived at by the learned Single Judge in the case of Rashmi Cement Limited (supra), the relevant paragraphs of which are reproduced as under:- 60. In the present case, what is not in dispute is that the petitioner is a company which is situated in Kolkata, West Bengal .....

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and only notice to show cause as to how and with what available resource, the property which has been provisionally attached was purchased by the petitioner. The impugned notice, in the present case, no doubt, has serious fiscal/penal consequences in case the explanation offered by the petitioner is not accepted by the Adjudicating Authority. But entertaining a writ petition seeking quashment of the aforesaid notice would amount to exercising discretion in the matter of arrogating jurisdiction .....

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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 .....

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grieved person is treated to be the dominus litis, as a result whereof, he elects to file the appeal before one or the other High Court, the decision of the High Court shall be binding only on the authorities which are within its jurisdiction. It will only be of persuasive value on the authorities functioning under a different jurisdiction. If the binding authority of a High Court does not extend beyond its territorial jurisdiction and the decision of one High Court would not be a binding preced .....

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h 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 - fi .....

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