9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (7) TMI 1065 - HC - Money LaunderingProvisional attachment of properties - inherited property - property acquired prior to commission of scheduled offence - HELD THAT - The properties on which the petitioner claims ownership have been attached and the petitioner has been served with a notice dated 14.07.2021 (Annexure P-1 Colly), pursuant to the order of provisional attachment confirmed by the adjudicating authority on 23.06.2021. Prima facie, the documents which are placed on record would show that the nucleus of the property is from inheritance and gift through the family members prior to availing the loan. The non payment and divertion of fund of loan is now subject issue of scheduled offence. The judgment relied on by the petitioner of SEEMA GARG, SAIYRAH @ DEEPIKA GARG, SANGEETA GARG VERSUS THE DEPUTY DIRECTOR, DIRECTORATE OF ENFORCEMENT (PREVENTION OF MONEY LAUNDERING ACT) , GOVT. OF INDIA 2020 (3) TMI 460 - PUNJAB HARYANA HIGH COURT wherein also it has been laid down that the property acquired prior to commission of scheduled offence cannot be attached unless property obtained or acquired from scheduled offence is held or taken outside the country. Therefore, prima facie, if the properties were held by the petitioner prior to the scheduled offence that cannot be subject of attachment by the authority. The another aspect is that Section 26 (3) of the Act, 2002 gives a right to file an appeal and 45 days time has been provided. The facts would suggest that the orders by the adjudicating authority were passed on 23.06.2021 which was received by the petitioner on 05.07.2021, therefore, the limitation to file the appeal still exists up to 19.08.2021 - if the limitation still exists but before that any enforcement order is executed to takeover the property, it would amount to defeat the right which is guaranteed under Section 26 (3) of the Act, 2002. Further as has been stated that the appellate tribunal is non-functional as on date, as such the petitioner cannot be left in lurch when the right has been given by the statute which requires to be appreciated. It is directed that pursuant to the order dated 23.06.2021 notice dated 14.07.2021 in respect of the petitioner for taking over the possession of the aforesaid two properties shall not be given effect to till the next date of hearing - List it after four weeks.
Issues:
Application for exemption from filing typed copy of annexures, Application for interim relief, Ownership of properties under Prevention of Money-Laundering Act, 2002, Right to file an appeal under Section 26 (3) of the Act, 2002, Prima facie ownership of properties, Attachment of properties, Right to file an appeal and limitation period, Non-functionality of appellate tribunal, Enforcement Directorate's investigation, Compliance with statutory procedures. Exemption from Filing Typed Copy of Annexures: The petitioner filed an application for exemption from filing typed copies of annexures, which was allowed by the court after due consideration, as the reasons stated in the application were found satisfactory. Interim Relief Application: The petitioner raised three grounds against the adjudicating authority's order under the Prevention of Money-Laundering Act, 2002, claiming ownership of two properties provisionally attached. The petitioner argued that the properties were inherited and gifted prior to the scheduled offense, making them not proceeds of crime. Reference was made to relevant documents showing the chain of ownership and transactions leading to the petitioner's possession of the properties. Right to File an Appeal and Limitation Period: The petitioner contended that Section 26 (3) of the Act, 2002 provides the right to file an appeal within 45 days of receiving the adjudicating authority's order. The petitioner emphasized that the limitation period for filing an appeal had not expired, and any enforcement action before the deadline would defeat the statutory right to appeal. Prima Facie Ownership of Properties: Upon examination of the documents and arguments presented, the court found that the properties in question were inherited and gifted to the petitioner before the scheduled offense, as per the chain of title and relevant records. The court also referenced a judgment stating that properties acquired before the commission of a scheduled offense cannot be attached unless acquired from the offense and held outside the country. Non-Functionality of Appellate Tribunal: The court noted that the appellate tribunal under the Act, 2002 was non-functional at the time, emphasizing the importance of not depriving the petitioner of their statutory right to appeal in such circumstances. Enforcement Directorate's Investigation and Compliance: The respondent opposed the petitioner's arguments, claiming that the properties were part of a loan guarantee and were gifted to the petitioner to avoid loan repayment. The respondent argued that the provisional attachment was justified, and the proceedings were civil in nature, not requiring a hearing. The court directed the respondent to file a reply and informed the authorities about the order, postponing the possession takeover of the properties until the next hearing. Conclusion: The court directed that the notice for taking possession of the properties should not be executed until the next hearing, considering the prima facie ownership details and the pending right to file an appeal within the statutory limitation period. The court emphasized the importance of respecting the statutory procedures and ensuring that the petitioner's rights were not infringed upon prematurely. The case was listed for a further hearing after four weeks.
|
