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TMI Blog2019 (7) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... . (d) The said property was not acquired from the proceed of crime. The appellant is always at liberty to approach the Special Court to initiate the proceeding for disposal of mortgaged property, if so desired, who is agreeable to deposit the excess amount if such situation will arise. Counsel for appellants after taking the instructions from his clients stated that his clients are duty bound to deposit the excess amount with the respondent - The Appellant has already initiated recovery proceedings under the SARFAESI and RDDBFI Act and insolvency proceedings under the I B Code for enforcement of its interest. S. 13 SARFAESI allows secured creditors to enforce security. The possession is already with the appellant. The impugned order is set-aside with regard to attachment of properties mortgaged with the appellant - rest of the attachment shall continue. - Justice Manmohan Singh Chairman And Shri G.C. Mishra Member For the Appellant : Shri Shyam Moorjani, Advocate For the Respondent : Shri Neeraj Atri, Advocate JUDGEMENT FPA-PMLA-2778/JP/2018 1. By this order, we propose to decide the present appeal which was filed by Rajasthan Financial Corporation against the order dated 9th Nov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licy. Cheques of M/s. Temple Trust Board, Nathdwara, M/s. Dharm Putra Sansthan, and M/s. Patanjali Yog Hospital etc. were discounted without due (legal) authority. Accounts of M/s. Mobile Associa tes (Naresh Kanwarani), M/s. Everest Ashiana (Vineet Jain), M/s. Raj Minerals (Mahendra Meghwal), M/s. Padmawati Enterprises (Bhaskar Jain), M/s. Rameshwaram (Pradeep Nimawat), M/s. Dharma Putra Sansthan (Vipul Kaushik), M/s. Arihant Financial (Piyush Jain) and M/s. Ranu Motors (Nitin Parikh) were used for forged cheques discounting. Money was layered and transferred to different accounts of M/s. Guman Furniture Services, M/s. Guman Furniture Electronics, M/s. Guman Jewellers, Shankar Khandelwal, Tikam Khandelwal and others. c) The Deputy Director has analysed the details emerging from the subsequent FIRs filed. The investigation revealed that (1) Bharat Bomb, Chartered Accountant of Udaipur, (2) Shankar Lal Khandelwal, Builder of Jaipur, (3) Vipul Kaushik, Key Associate of Bharat Bomb (4) Santosh Kumar Gupta, then Bank Manager, Syndicate Bank, (5) Vineet Jain, (6) Piyush Jain and (7) Usha Gupta w/o Santosh Gupta are involved in criminal activities relating to the scheduled offences under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ank officials viz. Santosh Kumar Gupta, Deshraj Meena and their spouses are proceeds of crime or value thereof being derived or obtained as result of criminal activity relating to a schedule offence. e) The Deputy Director has elaborated in Para 11 of the OC the facts concerning the attached movable and immovable assets under separate captions (i) Land at village Champapura, Patwar Sarna Chaud, Teh.- Kalwar, Dist. Jaipur registered in the name of M/s. Charlie Tradelink Pvt. Ltd. (ii) Farm House at Khasra No. 204, 205, 206, 207 admeasuring 9600 Sq. Mtrs. At Village-Thikriya, Tehsil-Sanganer, Main Ajmer Road, Jaipur (iii) Unsold stock at projects Guman Eternity Block A and Guman Eternity Block-B of companies M/s. Shreenth Ji Business Venture Pvt. Ltd. And M/s. Sanwariaji Business Venture Pvt. Ltd. Respectively at Shastri Nagar, Subhash Nagar, Jaipur; (iv) Unsold stock at Guman Height, Plot No. 204, Krishna Sagar Colony, Jaipur, Rajasthan (v) Plot No. GH-1 Gokul Nagar, Gokulpura, Kalwar Road Jaipur (vi) Land and Building of Hotel Palak Paradise at Kalwar Road, Delhi Ajmer Express Highway, Jaipur (vii) Various immovable assets of Guman Group led by Shankar Lal Khandelwal (ix) Office of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivities or proceed of crime. The scope of the PMLA is to punishing the accused person and not to punish the innocent person who is not involved in the crime within the meaning of Section 2 (v) read with Section 3 of the Act. The appellant is not charge sheeted nor any prosecution complaint has been filed against the appellant. The appellants have also no objection if the borrowers properties which were acquired from proceed of crime be dealt by the respondent in any manner. 4. There is no nexus whatsoever, between the alleged crime and the appellant who is mortgagee of the property and is a victim of the fraud and is innocent party. The definition of proceed of crime as per Section (u) of the Act comprises of the property which is derived or obtained as a result of criminal activities. The mortgaged property is not acquired from proceed of crime. 5. The present appeal relates to property at Sr. No.05 being the plot no. GH-1, Gokul Nagar, Gokul Pura, Kalwar Road, Jaipur ( hereinafter called said property ) description and contentions wherefor have been given by the respondent ED in para 11.05 of para 11 of the complaint OC No. 984/2018. 6. There is no dispute that property situated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and appellant served a legal notice dated 28.06.2016 recalling the loan followed by notice dated 20.07.2016 under Section 30 of the SFC Act. Borrower failed to repay the loan despite the notices, therefore the possession of the said property mortgaged to the appellant was taken over on 28.11.2016 by the appellant in exercise of powers conferred under section 29 of SFC s Act 1951. e) The possession of the said property is with the appellant since 28.11.2016 till today. f) That the provisional attachment order (PAO) was issued on 16.15.2018 ( see page 349 vol.-III Part-B ). The complaint OC- 984/2018 was filed only on or about 12.06.2018 and served on the appellant only on 24.05.2018. g) The appellant is not an accused. The appellant has been made a party only because it is a financial institution who has granted loan and the said property has been mortgaged by the borrower with the appellant and the appellant is in possession of the said property having taken over the same for recovery of its dues in exercise of powers conferred under SFC s Act. 9. All the supporting documents are placed on record. 10. The only allegation made with respect to the said property is in para 11.05 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e latter action unwittingly having the effect of frustrating the former. Since both actions are in accord with law, in order to co-exist and be in harmony with each other, following the preceding prescription, it would be appropriate that the PMLA attachment, though remaining valid and operative, takes a back-seat allowing the secured creditor bonafide third party claimant to enforce its claim by disposal of the subject property, the remainder of its value, if any, thereafter to be made available for purposes of PMLA. 12. The Hon ble High Court of Delhi has held that the interest of a third party in the property of an accused, acquired prior to the commission of the proscribed offence cannot be defeated or frustrated by attachment of such property U/s 8 of the Act. The Hon ble High Court further recognized the right of such third party to proceed with enforcement of its interest in accordance with law such that while the order of attachment under the Act would not be rendered irrelevant, yet it would take a backseat such that the State action would be restricted to such part of the value of the property as exceeds the claim of the third party, if any . 13. Pertaining to jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Laundering under PMLA is the cut off date and if the Bank has mortgage / charge over the properties prior to the commission of offence under PMLA then it is a Bonafide Claimant and its Statutory rights can t be defeated under Section 8 of PMLA, 2002. (ii) Priority of Bonafide Claimants / Secured Creditors will have their dues realized first from the sale of such attached immovable assets and if any balance is left out then the balance amount shall go to the ED on the premise that the said properties will continue to remain attached with the ED under PMLA on the ground of value thereof. (iii) Prior mortgage charge of secured creditors must be registered qua the mortgaged immovable properties only then Bank s statutory rights under Section 13 of the SARFAESI, Act are protected. (iv) SARFAESI, action initiated prior to the commission of offence of Money Laundering under PMLA would remain valid and interest of secured creditors will remain protected. 17. If paras 167 to 169 of Hon ble High Court s Judgment are read co-jointly with para-163 and 165, it is clear from the same that if the attachment has attained finality or if order of confiscation has been passed, the claim and legitim ..... 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