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TMI Blog2021 (7) TMI 1065X X X X Extracts X X X X X X X X Extracts X X X X ..... ance and gift through the family members prior to availing the loan. The non payment and divertion of fund of loan is now subject issue of scheduled offence. The judgment relied on by the petitioner of SEEMA GARG, SAIYRAH @ DEEPIKA GARG, SANGEETA GARG VERSUS THE DEPUTY DIRECTOR, DIRECTORATE OF ENFORCEMENT (PREVENTION OF MONEY LAUNDERING ACT) , GOVT. OF INDIA [ 2020 (3) TMI 460 - PUNJAB HARYANA HIGH COURT] wherein also it has been laid down that the property acquired prior to commission of scheduled offence cannot be attached unless property obtained or acquired from scheduled offence is held or taken outside the country. Therefore, prima facie, if the properties were held by the petitioner prior to the scheduled offence that cannot be subje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the annexures. Also heard on the application for interim relief. Learned counsel for the petitioner submits that he raised three grounds against the order of the adjudicating authority under the Prevention of Money-Laundering Act, 2002 (hereinafter referred to as the "Act, 2002"). It is contended that the petitioner is the owner of two properties out of which the properties which were provisionally attached on 06.05.2020 under Section 5 (1) of the Act, 2002 and according to the Act, 2002 it has lost its life after the period of 180 days, however, the adjudicating authority by its order dated 23.06.2021 has affirmed the provisional attachment order of two properties which are shown hereinunder:- 2. Khasra No.374/2 (4080 Square Feet) at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fted the property in April, 2015 to the present petitioner Smt. Soumya Sharma. In respect of another property it is contended that the house of Raipur Development Authority situated over Khasra No.374/2 (4080 Square Feet), plot No.B-13/7 at New Rajendra Nagar, Mauza- Tikrapara, P.H. No.114, Raipur-1, Teh. & Distt.- Raipur, Chhattisgarh which falls in Katora Talab scheme was purchased by Naman Sharma from Vasudeo Wadhwa vide Annexure P-4. Thereafter, after death of Naman Sharma as per Annexure P-5 on 11.04.2009 husband of the petitioner Vidit Sharma became the owner of the property being the brother and the husband has gifted such property to the petitioner Smt. Soumya Sharma vide Annexure P-6 in March, 2016. Learned counsel for the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 05.07.2021, therefore, the limitation period of 45 days as per Section 26 (3) of the Act, 2002 would be up till 19.08.2021 and therefore, as per the law laid down by the Bombay High Court in the case of Arun Kumar Saha and Anr. Vs. The Union of India and Anr. (Writ Petition No.1207 of 2020) and by the Madras High Court in the case of B. Kamalam Vs. The Joint Director, Directorate of Enforcement, Chennai-6 & Anr. (Writ Petition No.27451 of 2014 and MP No.1 of 2014) the said right cannot be defeated by dispossessing the petitioner even before the expiry of the period of limitation for filing appeal. It is further submitted that even otherwise the appellate tribunal under Section 25 of the Act, 2002 is not operative, therefore, the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has started investigation which may take time. Therefore, at this stage, the ejectment order should not be interfered. I have heard learned counsel for the parties and perused the documents. The properties on which the petitioner claims ownership have been attached and the petitioner has been served with a notice dated 14.07.2021 (Annexure P-1 Colly), pursuant to the order of provisional attachment confirmed by the adjudicating authority on 23.06.2021. Prima facie, the documents which are placed on record would show that the nucleus of the property is from inheritance and gift through the family members prior to availing the loan. The non payment and divertion of fund of loan is now subject issue of scheduled offence. Documents prima faci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. Therefore, prima facie, if the properties were held by the petitioner prior to the scheduled offence that cannot be subject of attachment by the authority. The another aspect is that Section 26 (3) of the Act, 2002 gives a right to file an appeal and 45 days time has been provided. The facts would suggest that the orders by the adjudicating authority were passed on 23.06.2021 which was received by the petitioner on 05.07.2021, therefore, the limitation to file the appeal still exists up to 19.08.2021. As has been held by the Bombay High Court and Madras High Court, I am also in respectful agreement with the proposition laid down by both the Courts. Therefore, if the limitation still exists but before that any enforcement order is execute ..... X X X X Extracts X X X X X X X X Extracts X X X X
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