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TMI Blog2018 (10) TMI 329X X X X Extracts X X X X X X X X Extracts X X X X ..... ter taking the possession, they would reside there and it is a mortgaged property. The financial institutions are secured creditors. The 2nd proviso mandates that in case the property is not attached immediately, the non-attachment of the property is likely to frustrate any proceeding under this Act. Prima facie, such situation is not available as per material placed on record nor it is mentioned in the impugned order. At the time of hearing of appeal, this tribunal will re-examine as to whether the mandatory compliance has been made in the present case or not and if the compliance of second proviso has been made on the date of passing the provisional attachment order (which the relevant date), then the objection may be over-ruled.If not, then the provisional attachment ordercould not have been passed as per law. Even the confirmation order ipso facto would also be set aside. As enquired from the learned counsel for respondent no. 1 to produce the copy of the reasons to believe which is mandatory under 2nd proviso of Section 5(1) of the Act. He submits that the copy of reasons to believe is not available with him. It must have been sent to the Adjudicating Authority. He is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Branch (hereinafter referred to as ACB ) Chennai, an FIR being FIR No. RC MA1 2016 A0050 (hereinafter referred to as CBI FIR ) was registered by the CBI. The allegation was broadly, that wrongful gain to the Appellant and wrongful loss to the Government of India of ₹ 115 Crores has been caused, by sale of the property admeasuring about 10.46 Acres in Guindy Village, Chennai (hereinafter referred to as the the said property ) at a sale price of ₹ 272 Crores whereas the Guidelines value for the same was ₹ 387 Crores (and hence the loss). The same is merely a notional gain and notional loss. It was alleged that the sale was wrongly done by private treaty instead of by public auction and that sufficient time, paper publication and other guidelines for private treaty sale were not followed. It was alleged that this was done by collusion and connivance of the officials of State Bank of India (hereinafter referred to as SBI ), Egmore, Chennai branch (SBI being the lead bank in the consortium of Banks that had financed HTL) with officers of M/s Hindustan Teleprinters Ltd. (hereinafter referred to as HTL ) (HTL being the debtor) and the Appellant Company (being t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l not allow the appellant to carry out further construction in the building. The customers are victim and innocent parties and are not ready to pay the remaining amount as per agreement if there is no progress of construction. They are admittedly not involved in any offence either under the scheduled offence or under the PMLA. The plot was purchased after taking the loan from financial institutions who are the secured creditors. The question of proceed of crime for purchasing the plot does not arise with most of the buyers agreements and sale-deeds have been executed. 5. It is also stated by the learned counsel appearing on behalf of the appellant that the amount of hundreds crores of rupees have been involved by purchasing the land and construction carried out on the flats. The amount was disbursed by the financial institutions(who are the secured creditors). It is a home-loan and in case the customers will stop paying the remaining amount, the entire project would be collapsed. The property has already been mortgaged with the banks to the appellant, therefore, the present application has been filed without prejudice in order to cover the alleged loss of ₹ 115 crores bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 35(1) of the PMLA reads as under: 35. Procedure and powers of Appellate Tribunal (1) The Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by the principles of natural justice and, subject to the other provisions of this Act, the Appellate Tribunal shall have powers to regulate its own procedure. 10. Mr. Nikhil Rohtagi, Advocate in support of his arguments has referred the decision of the Supreme Court with regard to the power of the Tribunal to regulate its own procedure in the case of Union of India Vs. Paras Laminates (P) Ltd. Paras 7 and 8 of the judgement are reproduced hereunder:- 7. Sub-section (6) Section 129C says that the Tribunal shall have the power to regulate its own procedure. It reads: (6) Subject to the provisions of this Act, the Appellate Tribunal shall have power to regulate its own procedure and the procedure of the Benches thereof in all matters arising out of the exercise of its powers or the discharge of its functions, including the places at which the Benches shall hold their sitting. Sub-sections (7) and (8) of this Section pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r ED would satisfy the tribunal about the condition of second proviso of section 5(1), the said amount may be treated as proceed of crime which is allegedly saved by the appellant and prima facie I am of the view that at the best, the impugned property could have been attached as value thereof for sum of ₹ 105 crores. 14. It is also the case of the appellant that even otherwise more than sufficient to cover the alleged loss by the waiver of interest of approx. ₹ 53.50 crores to and by State Bank of India. Evendespite of that, the appellant is offering alternative property value of which is approx. ₹ 119 crores as per the prevailing circle rate of area in order to secure the amount without prejudice and have no objection that the proceedings of complaint under the schedule offence and PMLA, 2002 may continue as per law and the appellant would defend the same as per law. 15. It is also a matter of fact that the construction was being carried out when the ED had attached the property in which the stake of 461 customers are involved who have paid part of the amount to the appellant and the remaining amount is to be paid by them as per progress of construction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tach such property for a period not exceeding one hundred and eighty days from the date of the order, in such manner as may be prescribed: Provided that no such order of attachment shall be made unless, it relation to the scheduled offences, a report has been forwarded to a Magistrate under section 173 of the Code of Criminal Procedure, 1973 (2 of 1974), or a complaint has been filed by a person authorised to investigate the offence mentioned in that Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be, or a similar report or complaint has been made or filed under the corresponding law of any other country. Provided further that, notwithstanding anything contained in (first proviso), any property of any person may be attached under this section if the Director or any other officer not below the rank of Deputy Director authorized by him for the purposes of this section has reason to believe (the reasons for such belief to be recorded in writing), on the basis of material in his possession, that if such property involved in money laundering is not attached immediately under this Chapter, the non-attachment of the prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other officer not below the rank of Deputy Director authorized by him for the purposes of this section has reason to believe (the reasons for such belief to be recorded in writing), on the basis of material in his possession, that if such property involved in money laundering is not attached immediately under this Chapter, the non-attachment of the property is likely to frustrate any proceedings under this Act.) 25. It is stipulated that notwithstanding anything in the first proviso the properties can be attached without filing the report to the Magistrate or the complaint is filed. 26. Meaning thereby that the properties may be attached by ED merely on the basis of allegations and material but subject to the following mandatory conditions. The same are; a. If such property is involved in money laundering is not attached immediately,non attachment is likely to frustrate proceedings under this Act. b. But it is recorded in an independently in the reason to believe in writing on the basis of material,the expression immediately shall play vital role and reasons to be assigned in the order of reason to believe. 27. The second proviso is also conditional one and man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from the learned counsel for respondent no. 1 to produce the copy of the reasons to believe which is mandatory under 2nd proviso of Section 5(1) of the Act. He submits that the copy of reasons to believe is not available with him. It must have been sent to the Adjudicating Authority. He is also not aware the language of the reasons to believe if passed under the 2nd proviso of the Act. 33. In the meanwhile, the Appellate Authority is directed to produce the trial record along with the copy of the reasons to believe in the sealed cover on the next date of hearing. Registry will take necessary steps to call for the record from Adjudicating Authority through the messenger who along with also send the copy of reasons to believe lying in sealed envelope. 34. In the interest of justice, the equity in favour of the appellant who are offering the alternative property which is approx. ₹ 119 crores as per the prevailing circle rate of area. The respondent no. 1 is always at liberty to point out if the said alternative is not free from any incumbrances. 35. In the light of above, the prayer made in MP no. 4913/2018, the prayer is allowed. I direct respondent no. 1 to accept t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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