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2019 (3) TMI 1318 - Tri - Money LaunderingCorporate insolvency process - Offence under PMLA - attachment orders - Resolution Professional authority to proceed to take charge of the properties - HELD THAT - Attachment order dated 29.05.2018 and the Corrigendum dated 14.06.2018 issued by Respondent and as confirmed Adjudicating Authority under PMLA Court is a nullity and nonest in law in view of Sections 14(1)(a), 63 and 238 of IBC and the Resolution Professional can proceed to take charge of the properties and deal with them under IBC as if there is no attachment order. The concerned sub-registrars are directed to give effect to this order and remove their notings of attachment, if any, in their file in respect of properties belonging to the Corporate Debtor. It is needless to mention that the attachments in respect of the properties of the Corporate Debtor only are covered in this order. Consequently, the sub-registrar at Jambusar is directed to register and hand over the two Original lease deeds entered into between Sterling SEZ and Infrastructure Ltd. and P. I. Industries Ltd. on 28.08.2018, as prayed for in this application.
Issues Involved:
1. Release of provisional/final attachment on assets by the Enforcement Directorate. 2. Registration and handover of original lease deeds by the sub-registrar. Detailed Analysis: 1. Release of Provisional/Final Attachment on Assets by the Enforcement Directorate: Applicant's Arguments: - The Applicant, as the Resolution Professional (RP), argued that under Section 18 of the Insolvency and Bankruptcy Code (IBC), the RP is required to take control and custody of all assets of the Corporate Debtor. - The moratorium imposed under Section 14 of the IBC prohibits the institution of suits or proceedings against the Corporate Debtor, including the execution of any judgment, decree, or order. - Section 238 of the IBC stipulates that the provisions of the Code shall have effect notwithstanding anything inconsistent in any other law. - The Applicant cited previous judgments where the NCLT directed the release of attachments by the Enforcement Directorate (ED). Enforcement Directorate's Defense: - The ED argued that the properties attached are proceeds of crime under the Prevention of Money Laundering Act (PMLA) and that the PMLA has overriding effects in terms of Section 71. - The ED contended that the moratorium under IBC does not apply to criminal proceedings initiated under PMLA. Amicus Curiae's Submissions: - The Amicus Curiae highlighted that the IBC, being a later statute, should prevail over the PMLA due to the non-obstante clause in Section 238 of the IBC. - The Appellate Tribunal for PMLA in previous cases held that the proceedings before the Adjudicating Authority under PMLA are civil in nature and thus, the moratorium under IBC would apply. - The Amicus Curiae also pointed out that the attachment under PMLA cannot be raised by NCLT under IBC, but the RP can take physical possession of the properties in terms of Section 18(1)(f) of the IBC. Tribunal's Findings: - The Tribunal noted that the purpose of IBC is to maximize the value of assets for creditors, and the PMLA aims to recover property from wrongdoers. - Considering the overriding provisions of Section 238 of IBC, the Tribunal held that the IBC provisions will prevail over PMLA. - The attachment order under PMLA is deemed a nullity and non-est in law due to the moratorium under Section 14 of the IBC and the overriding effect of Section 238. - The Tribunal directed the Resolution Professional to take charge of the properties and deal with them under IBC without the attachment order. 2. Registration and Handover of Original Lease Deeds by the Sub-Registrar: Applicant's Request: - The Applicant sought directions for the sub-registrar at Jambusar to register and hand over the original lease deeds entered into between Sterling SEZ and Infrastructure Ltd. and P. I. Industries Ltd. Tribunal's Order: - The Tribunal directed the sub-registrar at Jambusar to register and hand over the two original lease deeds as prayed for in the application. Conclusion: The Tribunal ordered the release of the attachment on the assets of the Corporate Debtor by the Enforcement Directorate, deeming the attachment order a nullity and non-est in law. The Tribunal also directed the sub-registrar to register and hand over the original lease deeds. The application was ordered in the above terms, with no costs awarded. The Tribunal expressed gratitude to the Amicus Curiae for his assistance.
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