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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 ..... Act by CBI, BS & FC New Delhi against Satish Kumar Goyal and others. Charge-Sheet dt. 07.03.2016 came to filed by CBI for the offences punishable under section 120 B, 409, 420, 467, 468, 471 of IPC and section 13(2) r/w 13(1) (c) and 13(1) (d) of PC Act against Bharat Bomb, Shankar Khadelwal, Vipul Kaushik, Santosh Kumar Gupta and Usha Gupta. Investigation against Satish Kumar, Sanjiv Kumar, Deshraj Meena, Adarsh Manchanda, Awadesh Tiwari, Piyush Jain and Vineet Jain is shown to be pending. ECIR dt. 11.07.2016 came to be registered by the Enforcement Director as the offences under section 120 B, 420, 467 and 471 of IPC and section 13(2) r/w 13(1) (d) of PC Act are the scheduled offences. The Charge-Sheet reveals that without requisite KYC documentation, over 386 bank accounts were opened by the suspects in the said three branches of Syndicate Bank at (i) Malviya Nagar branch, Jaipur, (ii) M.I. Road branch, Jaipur and (iii) Bapu Nagar Branch, Udaipur by using identification documents of genuine account hodlers in other banks with the nexus of bank officials for diverting the bank funds to the tune of 1055.79 Cr. to various destinations by adopting three different modus operandi i.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... companies including those of Shankar Khandelwal, his family members & his group of companies; Himanshu Verma & his companies; Pavitra Kothari, family member & his companies for investment/loan purpose by way of complex maze of financial transactions. Bharat Bomb through the accounts of his associates, and his fictitious firms transferred about Rs. 231.20 Cr. in accounts of Shankar Lal Khandelwal of Guman Group, his family members and his companies out of the Proceeds of Crime generated from Syndicate Bank Fraud and out of the above fund about Rs. 103.07 Cr. has been repaid by Shankar Lal Khandelwal of Guman Group, his family members, his companies and more than Rs. 128,13,64,438/- is still outstanding. Further, Shankar Lal Khandelwal committed fraud aggregating to Rs. 58,22,00,000/- by availing fraudulent housing loans in the name of his associates, employees, family members by showing illicit booking of flats in various projects of Guman Group. That in aggregate Shankar Lal Khandelwal of Guman Group, his family members and his companies are beneficiary of more than Rs. 1,86,35,64,438/- which are Proceeds of Crime generated out of Syndicate Bank fraud. Further, Pavitra Kothari, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... movable properties registered in the name of Santosh Kumar Gupta, Chief Manager, Syndicate Bank (Retired) and his family members (xiii) Movable & Immovable properties registered in the name of Deshraj Meena, Chief Manager (Suspended), Syndicate Bank and his family members (xiv)Immovable properties of Himanshu Verma and his companies (xv) Immovable properties of Pavitra Kothari, Daulatraj Kothari, Priya Kothari (xvi) Vill No. 40, Pafrth City Kalwar Road, Jaipur registered in the name of Mahendra Meghwal and cash of Rs. 66,88,400/- seized by CBI from Mahendra Meghwal (xvii) Plot No. A-5, Airport Enclave (Airport Plaze Extension) Tonk Road, Jaipur admeasuring 7276.40 Sq. Mtrs in the name of M/s. A. Gangwal Real Estate LLP (xviii) Proceeds of Crime available in various bank accounts of different firms/persons whose accounts were used by Bharat Bomb in defrauding Syndicate Bank (xix) Proceeds of Crime available in various bank accounts of different firms/persons controlled by Shankar Lal Khandelwal. f) It is evident that prime facie the Defendants are in possession of the proceeds of crime and/or have committed the offence of money laundering punishable under section 4 of PMLA. g) T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority. 8. Admitted Case of the parties on record is that: a) Appellant is a Financial Institution established under the State Financial Corporation Act 1951 ('SFC Act' for short) and is a state of Rajasthan undertaking. b) The Appellant granted a loan of Rs. 772.00 Lakh to M/s. Guman Builders & Developers (P) Ltd.,Respondent No.50 herein ('Borrower' for short) for purchase of the said property from Jaipur Development Authority ('JDA' for short). The loan was granted on a margin of 50% after duly verifying everything from JDA regarding title ,payment etc. and further the amount of loan was directly paid to JDA and not given in the hands of the borrower. The said loan has been secured by equitable mortgage of the said property in favour of the appellant by deposit of original title deeds of the said property. The loan was sanctioned vide sanction letter dated 18.11.2014, Loan agreement dated 26.11.2014 alongwith all the necessary documents were duly executed and equitable mortgage by deposit of title deeds created on 26.11.2014. The charge was duly got created & registered by the appellant with the Registrar of Companies. The amount of loan of Rs. 772.00 Lakh was duly disbursed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant is entitled to recover the same from the said property. 11. It is argued on behalf of the appellant that the present case is squarely covered by the recent judgment of the Hon'ble Delhi High Court in Directorate of Enforcement vs. Axis Bank & Ors. reported in 2019 SCC Delhi 7854 dated 2.4.2019 , wherein, it has been observed as under: "163. Having regard to the above scheme of the law in PMLA, it is clear that if a bonafide third party claimant had acquired interest in the property which is being subjected to attachment at a time anterior to the commission of the criminal activity, the product whereof is suspected as proceeds of crime, the acquisition of such interest in such property (otherwise assumably untainted) by such third party cannot conceivably be on account of intent to defeat or frustrate this law. In this view, it can be concluded that the date or period of the commission of criminal activity which is the basis of such action under PMLA can be safely treated as the cut-off. From this, it naturally follows that an interest in the property of an accused, vesting in a third party acting bona fide, for lawful and adequate consideration, acquired prior to the commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chment cannot be said to have attained finality. This Tribunal is only concerned with the validity of the impugned order and provisional attachment order which has been confirmed. 14. Therefore, this Tribunal possesses the requisite jurisdiction in terms with the Act as the court of first appeal, to adjudicate upon the pleas of the Appellant and determine the bonafides and legitimacy of its claims as well as the legality of the Provisional Attachment Order. Upon an argument being raised by the Enforcement Directorate that claims of third parties are to be solely adjudicated by the Special Court before whom trial is pending. 15. The Hon'ble High Court of Delhi in the Axis Bank Decision has held that the claim of a party asserting a bonafide and legitimate claim would be inquired into by the Special Court only if the order confirming the attachment "has attained finality". An order cannot be said to have attained finality until and unless all the remedies under the Act have been exhausted. No doubt, the bank and financial institutions are always at liberty to approach the Special Court (if so desired) in order to invoke the amended provision of sub section 8 of Section 8, however, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that legal issues of the Appellant case are similar to the judgement rendered by Hon'ble Delhi High Court as (a) The Appellant is not an accused and is bona fide third party to the transactions complained of by the ED; (b) The Appellant disbursed a loan in accordance with law to the Respondents Accused and created a mortgage over the Secured Property prior to the commission of the Scheduled Offence in respect of the Secured Property; and (c) The Appellant commenced the proceedings under SARFAESI Act against the Secured Property prior to its provisional attachment. (d) The said property was not acquired from the proceed of crime. 19. 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. 20. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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