2019 (2) TMI 95 - AT - Money Laundering

Possession of attached property - Interim order - whether the ED is entitled to take the possession once the property is already attached by the Prohibition of Benami Property Transaction Act, 1988 and the subject matter which is holding the property in custodia legis? - Held that - There is no force of the argument of Shri Nitesh Rana to take the possession of the property at this stage as in the case of Kanhaiyalal V. Dr. D.R. Banaji and others 1958 (3) TMI 79 - SUPREME COURT OF INDIA , it is settled that without leave of that court/tribunal, it would amount committing for contempt of the Court as the property is already held by other authority who, ultimately may be adjudged the proceeding as per law. The principle of law laid down also helps the facts of this case prima facie in favour of the appellant - List on 20th May, 2019.

Summary

Issues:
1. Fresh appeal filed under section 26 of Prevention of Money Laundering Act, 2002 against the order dated 29.11.2018 passed by the Adjudicating Authority.
2. Entitlement of Enforcement Directorate (ED) to take possession of property already attached under the Prohibition of Benami Property Transaction Act, 1988.
3. Whether the ED can take possession of property if it is already held by another authority in custodia legis.
4. Appellant's inclination to not dispose of the property till the appeal is finally decided.
5. Legal implications of proceedings against property in the possession of a Receiver without the leave of the Court.
6. Maintenance of status quo while the attachment continues.

Analysis:
1. The appeal was filed under section 26 of the Prevention of Money Laundering Act, 2002 against the Adjudicating Authority's order dated 29.11.2018. The court issued notice to the respondent for the appeal and interim application, with a timeline for filing replies and rejoinders. The appeal was listed for final hearing on 20th May, 2019.

2. The issue arose regarding the ED's entitlement to take possession of a property already attached under the Prohibition of Benami Property Transaction Act, 1988. The respondent's counsel argued for the ED to take possession, but the court referenced a legal precedent to support the view that possession cannot be taken without the leave of the court or tribunal holding the property.

3. The court considered whether the ED can take possession of a property already held by another authority in custodia legis. The appellant expressed reluctance to dispose of the property until the appeal's final decision. The court cited a case law to emphasize that taking possession without the court's permission could amount to contempt of court.

4. The legal implications of proceedings against property in the possession of a Receiver without the leave of the Court were discussed. The court highlighted the importance of maintaining the status quo to avoid conflicts of jurisdiction and uphold the rule of law. The court emphasized the need for permission from the court holding the property before initiating legal proceedings.

5. The court directed both parties to maintain the status quo while the attachment of the property continued. The judgment emphasized the importance of protecting property in custodia legis and preventing unauthorized legal proceedings that could jeopardize the rights of rightful owners. The court underscored the significance of upholding the rule of law and avoiding conflicts of jurisdiction in such cases.