2021 (9) TMI 1469 - HC - Money Laundering

Money Laundering - provisional attachment order - property purchased in the name of the company was acquired out of the proceeds of crime as defined in Section 2(1) (u) of the PMLA, 2005 - HELD THAT - On admission of the writ petition and granting an order of Interim stay, notice was given to the counsel for the Directorate of Enforcement and he entered appearance on 13.03.2012. Further, it is evident that the Directorate of Enforcement had knowledge about the interim order of stay. In spite of the stay order, the Deputy Director filed original complaint in O.C.No.129 of 2012 on the file of the Adjudicating Authority on 15.03.2012. Further, in the original complaint, the Deputy Director did not make the Indian bank as a party as interested party in the property. The provision of Section 8(2) of the PMLA Act makes it obligatory on the part of the Adjudicating Authority to hear the interested party i.e., the Indian bank. Unfortunately, the Adjudicating Authority, without impleading and ordering notice to the Indian Bank, confirmed the attachment by an order 26.06.2012 during the pendency of the Writ Petitions and during the operation of the stay order. The Hon'ble Apex Court has repeatedly held that any proceeding initiated, conducted or concluded in violation of an order of interim stay or injunction is non-est in the eye of law and the Adjudicating Authority should have waited till the disposal of the writ petitions or till the order of stay passed by this court is vacated. The action of the Adjudicating Authority despite having the knowledge of interim order of stay is clearly in defiance of the said interim order of stay. Therefore, the whole proceedings are vitiated and even the order dated 26.06.2012 passed during the pendency of the writ petitions shall be illegal and liable to be set aside as null and void. Appeal dismissed.

Summary

Issues Involved:
1. Legality of the provisional attachment order dated 22.02.2012.
2. Compliance with procedural requirements under the Prevention of Money Laundering Act (PMLA).
3. Rights of the Indian Bank under the SARFAESI Act.
4. Validity of the adjudication proceedings and orders during the pendency of the writ petitions.

Issue-wise Detailed Analysis:

1. Legality of the Provisional Attachment Order:
The Indian Bank and Palpap Ichinichi Software International Limited filed writ petitions challenging the provisional attachment order dated 22.02.2012 issued by the Directorate of Enforcement. The attachment was based on allegations that Palpap Ichinichi Software International Limited had availed loans using forged documents, which constituted scheduled offences under the PMLA. The learned Single Judge allowed the writ petitions, setting aside the attachment order and subsequent proceedings.

2. Compliance with Procedural Requirements under the PMLA:
The Directorate of Enforcement argued that the attachment was necessary to prevent the concealment or disposal of the property, which was allegedly acquired through proceeds of crime as defined under Section 2(u) of the PMLA. The counsel for the Directorate contended that the attachment was in accordance with Section 5(1) of the PMLA and necessary to fulfill the Act's objectives. However, the court found that the Directorate failed to comply with procedural requirements, particularly the obligation to implead the Indian Bank as an interested party under Section 8(2) of the PMLA.

3. Rights of the Indian Bank under the SARFAESI Act:
The Indian Bank argued that it had a legitimate right to recover its dues by selling the mortgaged property under the SARFAESI Act. The bank contended that the property was under its control and that there was no charge of money laundering against it. The court noted that the bank had taken steps to auction the property and that the sale proceeds were to be kept in an interest-bearing lien account as per the interim order dated 28.02.2012.

4. Validity of the Adjudication Proceedings and Orders:
The court observed that the Adjudicating Authority confirmed the attachment order on 26.06.2012 during the pendency of the writ petitions and the operation of the interim stay order. The court held that the proceedings initiated and concluded in violation of the interim stay were non-est in the eye of law. The Adjudicating Authority's failure to implead the Indian Bank and the continuation of proceedings despite the stay order rendered the entire process illegal and void.

Conclusion:
The court dismissed the writ appeals, confirming the order of the learned Single Judge. The provisional attachment order and subsequent adjudication proceedings were set aside as null and void due to procedural violations and the defiance of the interim stay order. The rights of the Indian Bank under the SARFAESI Act were upheld, allowing it to proceed with the recovery of its dues.