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TMI Blog2020 (7) TMI 532X X X X Extracts X X X X X X X X Extracts X X X X ..... Grant an interim stay on the operation of the impugned order dated 10.01.2020 passed by the Ld. Adjudicating authority in terms of the Corrigendum dated 27.07.2019 issued by the Enforcement Directorate, whereby the Appellant will continue to maintain a minimum bank balance equivalent to the amount attached, OR c. Grant an interim stay on the operation of the impugned order dated 10.01.2020 subject to the Appellant furnishing a Bank Guarantee of an equivalent amount attached, which will be renewed from time to time, and which bank guarantee will not be invoked without the leave of this Hon‟ble Tribunal, d. Pass such other or further orders as this Hon‟ble Tribunal may deem fit and proper in the facts and circumstances of the case and in the interest of justice, equity and good conscience. It appears from the contents of stay application that by the time these two applications are filed the appellant had no knowledge of the fact that the amount of Rs. 6,03,53,579/- has been transferred from the bank account of the applicant to the respondent. It is contended by the ld. senior counsel for the appellant that the aforesaid fact came to the knowledge of the appellant sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i High Court in W.P. (C) 12046/2019 filed by M/s TDI Infrastructure Ltd. (D-7 in the complaint filed by the respondent) wherein the Honb‟le Delhi High Court vide order dated 18.11.2019 was pleased to grant an interim relief directing the Adjudicating Authority to not pass any adverse order qua M/s. TDI Infrastructure Ltd. vi. That the appellant is seeking relief on the ground that interim relief of status quo has been granted by this Tribunal vide order dated 12.02.2020, in FPA-PMLA-3439/CHD/2020 Varinder Uppal and Ors. vs. Deputy Director, Directorate of Enforcement, Chandigarh. vii. The Adjudicating Authority has passed the impugned order dated 10.01.2020 on the basis of new reasons/allegations stated in the rejoinder filed by the respondent in violation of principle of natural justice. viii. The appeal before this Tribunal was listed 01.04.2020 on which date due to suspension of work on account of pandemic Covid-19 the matter got adjourned to 11.09.2020 as a result the applicant could not seek interim relief prayed for. ix. Due to the suspension of work in the tribunal, the applicant moved the Hon‟ble Delhi High Court to seek relief by way of filing writ of m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 467, 468, 471 and 120B of IPC and u/s 13 of the PC Act 1988 was registered by local Police at Manesar, Gurgaon, Haryana. Then the case was transferred to CBI and Regular Case has been registered by CBI on 15.09.2015 against unknown public servants of Govt. of Haryana and unknown private persons. ii. The CBI has filed charge sheet in the Special Court, Panchkula, and further investigation is in progress. The department has also filed prosecution complaint in respect of present applicant on 05.06.2020 and further investigation is in progress. iii. The adjudicating authority has passed legal and just order confirming thereby the attachments effected by the respondent in a provisional manner. The respondent has referred to rule 4(5) of manner of taking possession of the property in the form of money lying in a bank or financial institution. The shelter taken by the applicant that he came to know after partial lifting of the lockdown regarding liquidation/transfer of the attached amount to Respondent is not tenable as he said liquidation/transfer has effected on 11.02.2020 and lockdown started from 24th of March, 2020. iii. The act of money laundering is a continuing offence a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specially the provision of section 8(4) r/w rule 4(5) of manner of taking possession of movable property of Prevention of Money Laundering (Taking Possession Attached or Frozen Properties Confirmed by the Adjudicating Authority) Rule, 2013 with effect from 19.08.2013. In the rejoinder to the reply, the appellant has reiterated his stand and in addition thereto submitted that the applicant was only directed to maintain the balance of not less than of the aforesaid amount vide corrigendum to the PAO dated 27.07.2019 and that the stand of the respondent denying the acceptance of the bank guarantee is without any substance and that it merely allows the applicant to sustain its business concern in these adverse economic conditions till the final outcome of the appeal filed by the applicant and that the offence of money laundering is not a continuing and that the judgment cited by the respondent is not applicable and that the applicant has not been charge sheeted by the CBI which clearly indicate that there is not aliment of commitment of the predicate offence(s) has been found in the absence of the applicant. The PMLA, 2002 is not a standalone law. Besides the aforesaid written submis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant. In support of his contention the ld. Senior counsel relied on the judgment passed by Hon‟ble High Court of Bombay in the matter of W.P. lodging No. 606/2012 in UTI Mutual Fund vs. ITO & Others reported in 2012 SCC online BOM 390. The respondent did not give time to the appellant to exercise to their statutory right to file the appeal within 45 days from the date of service of the impugned order. (v) It is also submitted that the appellant is ready to secure the aforesaid amount by way of bank guarantee so that money would be secured. The appellant is need of money for his business not the respondent. The very purpose of the attachment is to maintain the balance to the tune of aforesaid amount and the appellant is ready to provide the bank guarantee the extent of that amount. On the other hand the ld. Counsel for the respondent orally argued and vehemently opposed that the money already transferred in favour of the respondent cannot be re-transferred to the account of the appellant as the said transfer has been done in accordance with law particularly by following the rules as prescribed under the Rule 4(5) of the said rules and that the aforesaid amount is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated with generation of proceeds of crime and laundered them. It is accordingly held that the properties under reference which have been attached under Section 5 is involved in Money Laundering. Prima facie case for confirmation of PAO is made. No doubt the properties attached are proceeds of crime or value thereof and are involved in money laundering. Undersigned therefore orders confirmation of the above Provisional Attachment Order. This order shall continue during the pendency of the proceedings relating to any offence under this Act before court or under the corresponding law of any other country, before the competent court of criminal jurisdiction outside India as the case may be and become final after an order of confiscation is passed under sub-section (5) to sub-section (7) of section 8 or section 58B or sub-section 2A or section 60. 5. The Provisional Attachment Order is confirmed and Complaint is allowed. Appeal against the order lies to Hon'ble Appellate Tribunal, PMLA, New Delhi under section 26 to the PML Act. The appeal may be filed within a period of 45 days from the date of receipt of the order." Through this impugned order the Adjudicating Authority confirmed t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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