Case Note & Summary
The writ petition under Articles 226 and 227 of the Constitution challenged the order dated 7 April 2021 of the Maharashtra Real Estate Appellate Tribunal which dismissed the developer's miscellaneous application for waiver of pre-deposit and directed deposit of the entire amount under the proviso to Section 43(5) of the Real Estate (Regulation and Development) Act, 2016. The dispute arose from a flat purchase in Prozone Palms, Nagpur, where the flat purchaser had booked a flat in 2015 for Rs.77,49,675 and subsequently filed a complaint under Section 31 of the RERA Act before the Maharashtra Real Estate Regulatory Authority. On 16 October 2019, the Authority directed refund of Rs.64,97,956 with interest at 10.4% and costs of Rs.20,000. The developer appealed under Section 43 and sought waiver of pre-deposit, which the Tribunal refused. The developer initially filed a Second Appeal, withdrew it with liberty, and filed the present petition. During pendency, the appeal was dismissed for non-compliance on 26 July 2021, and that dismissal was also challenged by consequential amendments. The primary legal issue considered was whether the flat purchaser's objection based on forum conveniens that the petition should be returned for presentation before the Nagpur Bench should be upheld. The flat purchaser argued that the property was in Nagpur, major part of cause of action arose there, and the developer had resources to litigate at either bench, while the flat purchaser would face hardship. The developer contended that the Tribunal and its records were in Mumbai, the impugned order was passed there, and the Appellate Side Rules required the Chief Justice's order for transfer. The court heard arguments and framed the question, and reviewed the salient features and objectives of the RERA Act. The available text ends before the court's final reasoning and order; therefore the final decision is not mentioned in the extracted judgment.
Headnote
A) Constitutional Law - Writ Jurisdiction - Territorial Jurisdiction and Forum Conveniens - Articles 226 and 227, Constitution of India - The developer challenged the Tribunal's order refusing waiver of pre-deposit; the flat purchaser objected that the Principal Seat should not entertain the petition because the property and major cause of action arose in Nagpur, relying on forum conveniens and decisions in Kusum Ingots and Sterling Agro. The developer contended that the Tribunal's location in Mumbai and the passing of the impugned order there conferred jurisdiction, citing Appellate Side Rules and Haji Abdul Razak. The court framed the question whether the objection should be upheld; no final holding is available in the extracted text. (Paras 7-10)
Issue of Consideration
Whether the objection of the flat purchaser that the writ petition should not be entertained at the Principal Seat on merits and instead returned for presentation before the Nagpur Bench should be upheld.
Final Decision
Not mentioned in available judgment text. The court heard arguments on preliminary objection and framed the issue; final decision is not included in the extract.
Law Points
- Articles 226 and 227 of Constitution
- territorial jurisdiction
- forum conveniens
- pre-deposit requirement under Section 43(5) RERA
- appellate tribunal location determines cause of action
- principal seat vs Nagpur bench
- writ maintainability
Case Details
2021 LawText (BOM) (09) 86
Writ Petition (L) No. 15724 of 2021
Mr. Shyam Devani, Ms. Hetal Thakore, Mr. Nazirali Rizvi, Ms. Heena Kapoor i/b. Dua Associates AOR for petitioner; Mr. Devendra Chauhan, Mr. Filji Frederick, Mr. Chaintanya Barve, Mr. Vinay Kumar, Mr. Ali Kazmi, Pranjal Murti, Mr. Aditya Chaudhari, Ms. Paridhi Sachdeva, Ms. Nidhi Chauhan i/b. FF and Associates for respondent No.1; Mr. Shamrao B. Gore, AGP for respondent No.2 State
Hagwood Commercial Developers Pvt. Ltd.
Rahul Madhukar Deshmukh & Anr.
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Writ petition under Articles 226 and 227 of Constitution challenging order of Maharashtra Real Estate Appellate Tribunal refusing waiver of pre-deposit and directing deposit under Section 43(5) of RERA Act; also challenge to dismissal of appeal for non-compliance.
Remedy Sought
Petitioner/developer sought quashing of impugned order dated 7/4/2021 and consequential relief; also challenged dismissal order dated 26/7/2021 via amendments.
Filing Reason
Tribunal refused to waive pre-deposit and directed deposit of entire amount; petitioner challenged legality and propriety of order.
Previous Decisions
Maharashtra RERA Authority order dated 16/10/2019 directing refund; Tribunal order dated 7/4/2021 dismissing waiver application; Tribunal order dated 26/7/2021 dismissing appeal for non-compliance.
Issues
Whether the objection of the flat purchaser based on forum conveniens that the petition should not be entertained at Principal Seat and should be returned for presentation before Nagpur Bench should be upheld.
Submissions/Arguments
Flat purchaser: property and major cause of action in Nagpur; statutory complaint filed in Mumbai only because authority located there; major part cause arose in Nagpur; forum conveniens requires convenience of all parties; developer has resources, flat purchaser will face hardship; reliance on Kusum Ingots and Sterling Agro.
Developer: Tribunal situated in Mumbai; impugned order passed in Mumbai; major cause of action in Mumbai; Appellate Side Rules require Chief Justice's order for transfer; developer from Mumbai; convenience of developer and Tribunal; flat purchaser opposed before Tribunal in Mumbai without raising inconvenience; reliance on Kusum Ingots, Haji Abdul Razak, and other cited decisions.
Judgment Excerpts
Invoking the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, the petitioner challenged the legality and propriety of the impugned order dated 7/4/2021 passed by the Maharashtra Real Estate Appellate Tribunal.
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 is the moot question.
The Preamble of the said Act provides that the Real Estate (Regulation And Development) Act, 2016 is an Act to establish the Real Estate Regulatory Authority for regulation and promotion of the real estate sector and to ensure sale of plot, apartment or building, as the case may be, or sale of real estate project, in an efficient and transparent manner and to protect the interest of consumers in the real estate sector and to establish 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 and for matters connected therewith or incidental thereto.
Procedural History
Complaint under Section 31 filed before Maharashtra RERA Authority; Authority order dated 16/10/2019 directing refund; developer filed appeal under Section 43 before Tribunal with Misc Application for waiver; Tribunal dismissed waiver application on 7/4/2021, directed deposit by 4/5/2021; developer filed Second Appeal, withdrew with liberty; filed writ petition; during pendency appeal dismissed for non-compliance on 26/7/2021; dismissal challenged by consequential amendments.
Acts & Sections
- Real Estate (Regulation and Development) Act, 2016: 31, 43, 43(5), 20
- Maharashtra Real Estate (Regulation and Development) (Recovery of Interest, Penalty, Compensation, Fine Payable, forms of complaints and appeal etc.) Rules, 2016: Rule 6
- Bombay High Court Appellate Side Rules, 1960: Rule 1 of Chapter XXXI
- Constitution of India: Articles 226, 227
