JUDGEMENT OF THE HON’BLE HIGH COURT OF DELHI IN THE CASE TITLED “AASMA MOHAMMED FAROOQ AND ANR VS. UNION OF INDIA AND ORS, (2018) 12 DEL CK 0041” CONCERNING OFFENCES UNDER PREVENTION OF MONEY LAUNDERING ACT

 

Aasma Mohammed Farooq And Anr vs. Union Of India And Ors, (2018) 12 DEL CK 0041

PARA NO.1,2,4 & 10

1. A preliminary objection has been taken by Ms. Maninder Acharya, learned ASG on the maintainability of the petition on the ground that this Court would not like to entertain the petition as the same would militate against the principles of forum conveniens, and also in view of Section 42 of The Prevention of Money-Laundering Act, 2002 (‘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 its discretionary jurisdiction by invoking the doctrine of forum conveniens.

Para no.2

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.”

4. To this objection of Ms. Acharya, Mr. Vikram Chaudhri, learned Senior Counsel for the petitioner has drawn our attention to the provisions of Section 6 of the Act to contend that before 2009, the said Section contemplated the Central Government shall appoint one or more adjudicating authorities to exercise jurisdiction, powers and authority conferred by or under this Act. The said Section has undergone an amendment whereby only one adjudicating authority has been contemplated, who is stationed in Delhi. According to Mr. Chaudhri, this writ petition has been filed by the petitioners challenging the provisions of Section 5(1), 5(5), 8(3), 8(5) and 8(6) of the Act. That apart, they are seeking quashing of provisional attachment order No. 08/2018 dated June 20, 2018 / impugned original complaint No.998 of 2008 dated July 18, 2018 and show cause notice dated July 31, 2018. It is his submission that the notice to show cause under Section 8 of the Act has been issued by the adjudicating authority, 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).

10. 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 petition. But merely because a part of cause of action has arisen under the jurisdiction of this Court, whether this Court needs to exercise its jurisdiction is the question need to be answered. This Court is of the view “that it should not”, for more than one reason; that it is not in dispute that the petitioner is based in Mumbai. The provisional attachment order has been passed in Mumbai. The complaint though, filed before the adjudicating authority in Delhi, it encompasses 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 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 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. Accordingly, we refrain from going into the merits of the case.