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TMI Blog2019 (1) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... d on ED. The Adjudicating Authority, thereafter, shall decide the reply of the appellant within 150 days from the date of receipt of such reply, in accordance with law, after giving due opportunity to both the parties. - MP-PMLA-5014/GWY/2018 (Misc.), MP-PMLA-4998/GWY/2018 (Exem.), MP-PMLA-4997/GWY/2018 (Stay) And FPA-PMLA-2551/GWY/2018 - - - Dated:- 2-1-2019 - Justice Manmohan Singh Chairman And Shri G. C. Mishra Member For the Appellant : Mr. Soumyajit Pani, Advocate, Mr. Subharajyoti Borthakur, Advocate And Mr. Chittaranjan Singh, Advocate For the Respondent : Mr. Naveen Kumar Matta, Advocate JUDGEMENT FPA-PMLA-2551/GWY/2018 1. The present appeal has been filed under Section 26 of the Prevention of Money Laundering Act, 2002 challenging the impugned notice bearing no. F. No. GWZO/Property/2016 dated 31/08/2018 issued by the Joint Director, Guwahati Zonal Office, Enforcement Directorate. 2. It is seen from the record that the respondent issued the notice dated 31.08.2018 for taking possession under sub-section 4 of section 8 of Prevention of Money Laundering Act (PMLA), 2002. The immovable property involved in the present appeal is as below:- D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant‟s offer of ₹ 70,00,000/- (Rupees Seventy Lakhs only) was accepted as the full and final amount for the aforesaid plot of land. The entire negotiations and dealings was with Shri Sanjay Jain, who was authorized on behalf of M/s. Saradha Realty India Ltd. to deal with all matters pertaining to the said sale. M/s. Saradha Realty India Ltd. vide their board resolution authorized Mr. Sudipta Sen to execute Power of Attorney in favour of Mr. Sanjay Jain, authorizing him to execute Sale Deed etc. The said Power of Attorney was registered in favour of Shri Sanjay Jain. V. A Memorandum of Understanding as well as a Registered Agreement for Sale were executed on 22.03.2013 in respect of land in question between the Appellant/Company and M/s. Saradha Realty India Ltd. pursuant thereto the Appellant paid ₹ 19,00,000/- (Rupees Nineteen Lakhs only) to M/s. Saradha Realty India Ltd. At this stage the seller backtracked from its promise for which reason the appellant had to file a suit before the Learned Civil Judge No.2, Kamrup (M) and for specific performance of the contract vide Title Suit No. 174/2013 and an injunction was issued in the matter restraining the seller f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the respondent authorities and again placed the relevant documents pertaining to the purchase of the land and after examination of the original documents kept copies of all the documents mentioned at Para 13 of Appeal Memo. The Appellant, vide communication dated 10.08.2018, appraised the respondent authorities about the submission of the documents with regard to the purchase of land in question and stated therein that Appellant is/are nowhere connected with M/s. Saradha Realty India Ltd. XI. The Appellant has made substantial investments to develop the property into a protected habitat for flora and fauna since 2013. XII. On 31.08.2018 it was informed by the caretakers and workers of the appellant that the respondent authorities came to the property along with armed police and driven them away. When the Director of the Company visited the site, he found two notice boards regarding attachment of the said property under PMLA. It is also contended by the appellant that for the first time he came to know about the Provisional Attachment under Section 5(1) dated 16.07.2014 and about the confirmation of the PAO by the Adjudicating Authority in O.C. No. 344/2014 dated 07 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been executed directly by the Hon‟ble Court of the Civil Judge Kamrup Metropolitian, District. xii. The Appellant/Company has relied on the judgments dated 13.08.2018 passed by this Tribunal in the matter of Ms. Kiran Mazumdar Versus Deputy Director, Directorate of Enforcement, Mumbai and Shri Vivek Mathias Versus Deputy Director, Directorate of Enforcement, Mumbai . 5. CASE OF THE RESPONDENT The pleading of the respondent in its reply to the appeal inter-alia are as below: a) The issue in this Appeal is related to the infamous Saradha Scam. The Director, Shri Sudipta Sen, the prime accused and mastermind in the multi-crore Saradha Scam which swindled ₹ 2,500 Crores from over 1.7 million depositors from West Bengal, Assam, Tripura, Jharkhand, Odhisha , before it was exposed in April, 2013. Shri Sudipta Sen, Director, hatched the conspiracy with the Appellant in connivance with the support of Shri Sanjay Jain to save this proceeds of crime (landed property in this case) from action under PMLA. b) On the basis of written complaint dated 13.04.2013 made by Shri Tapash Paul and other employees of a Bengali Daily Sakalbela , an FIR No. 276/2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le and immovable properties. It further revealed that there was a large number of properties purchased by Shri Sudipta Sen in the name of M/s. Saradha Realty India Ltd. in Assam and Tripura and the same was found to be the proceeds of crime. g) Consequent upon investigation by ED, the Provisional Attachment Order dated 16.07.2014 was issued. The same was duly confirmed by the Adjudicating Authority vide order dated 07.11.2014 in terms of Section 8(2) of PMLA, 2002. Consequent to the confirmation order dated 07.11.2014 passed by the Adjudicating Authority, the Department took the possession of the property on 31.08.2018. h) It is the contention of the Respondent that the Appellant in connivance with Directors of Saradha Realty India Ltd. acting through Mr. Sanjay Jain under a well-thought-out conspiracy has deliberately ignored the proceedings under the PMLA and has filed a Civil suit and got an ex-parte decree from the Civil Court-2, Kamrup by asserting to mis-statement, collusion, suppression of facts. The Appellant had the knowledge of proceedings under PMLA. If their action were bonafide they would have taken recourse to proviso (8) of Section 8 of PMLA, 2002, which prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of India Ors . 6. DISCUSSIONS/FINDINGS: i. We have heard the arguments of learned counsels of both the parties and gone through the relevant papers/documents including Memo of Appeal and Annexures, Reply of the Respondents, Rejoinder filed by the Appellant, Written Synopsis, PAO, Impugned Order, O.C., and Prosecution Complaint. ii. The cause of action for this present appeal has arisen when the Enforcement Directorate sealed the property in question by affixing the notice dated 31.08.2018 for taking possession under Section 8(4) of PMLA, 2002 and allegedly driven the caretakers and workers of the Appellant out from the property in question. iii. It is the contention of the Appellant that he was not aware of any proceedings under PMLA, 2002 either against the property or against him. iv. It is an admitted fact that he is not made a Party either in the Provisional Attachment Order under Section 5(1) nor in the O.C. No. 344/2014 filed before the Adjudicating Authority under Section 5(5) of PMLA, 2002. v. There is no denial on the part of the respondent regarding the execution of registered deed of agreement to sale executed on 22.03.2013. vi. It is revea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Appellant continuously brought it to the notice of the Enforcement Directorate several times and this fact has not been denied by the Respondent. In spite of having the knowledge of the purchase of the land in question, pendency of the suit etc. the Enforcement Directorate, Guwahati Office did not investigate into this aspect nor try to approach the Civil Court to plead that by virtue of Section 67 of PMLA, 2002 the Civil Court has no jurisdiction to entertain any suit concerning the property involved in a PMLA proceeding. For the reason best known to ED, Guwahati Office, in spite of having sufficient informations, the Appellant was not made a party even though the property in question which the Appellant had claimed to have purchased the property. ix. Specific query was made to the learned counsel for the respondent as to why the appellant is not made a party in the PAO and O.C. but we could not get any satisfactory reply. x. Therefore, it is prima facie felt that the Appellant should have been made a party to the proceedings before the Adjudicating Authority in the interest of justice and complete adjudication of the case appellant should have been given proper ..... X X X X Extracts X X X X X X X X Extracts X X X X
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