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TMI Blog2022 (4) TMI 1436X X X X Extracts X X X X X X X X Extracts X X X X ..... dergoing CIRP, the provisional attachment Order of the 1st Respondent be raised, failure of which would result in liquidation of the Corporate Debtor. However, as it can be seen that the Corporate Debtor has been ordered for Liquidation, the present Application has become infructuous. The provisional attachment made by the Respondents comes under the statute of Prohibition of Benami Property Transaction Act, 1988 which in itself has stipulated a due process with respect to attachment of property under Section 7 of the same. As the Insolvency and Bankruptcy Code, 2016 and the Prohibition of Benami Property Transaction Act, 1988 are two special Acts, the Applicant has alleged that the former should prevail over the latter as the IBC, 2016 was framed in 2016 - The general principle for construction in a circumstance where two special Acts are in conflict with each other is that, the Act made later should prevail vide the maxim 'leges posteriores priores conterarias abrogant'. However, in the present case, as there is nothing to stop the Applicant/Liquidator herein to proceed under the relevant section to raise the provisional attachment. This Adjudicating Authority do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted by the Applicant that, in the meantime, the Corporate Debtor received a Provisional Attachment Order and a show cause notice dated 01.11.2019 bearing F. No. IO/PBPT/PSL/199 from the 4st Respondent under Section 24(3) of the Prohibition of Benami Property Transactions Act, 1988 wherein, the immovable property of the Corporate Debtor was received on 24.12.2019. Consequently, the Corporate Debtor is prohibited and restrained, until further order or till 90 days from the end of the month from the date of the said notice whichever is earlier, from transferring or charging the properties described above as per the provisions of Section 24(3). III. It is further stated by the Applicant that in the show cause notice, it is stated that in furtherance to the investigation and search actions under Section 132 were initiated against Ms. V.K. Sasikala and others on 09.11.2017, 17.11.2017 and 28.11.2017, various incriminating documents and loose sheets were found and seized, which inter-alia, established that during the period of demonetization an amount of Rs. 386 Crore was paid for the purchase of the immovable property of the Corporate Debtor in control of the 2 to 4 Respondents h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dar, the property attached is the Benami Property and Smt. V.K. Sasikala is the beneficial owner. B. As a consequence of the provisional attachment, the Corporate Debtor is prohibited until further order or till 90 days from the end of the month from the date of notice under Section 24(1) whichever is earlier, from transferring or charging the properties described above as per the provisions of Section 24(3). It is further submitted that this Adjudicating Authority is not the appropriate authority to revoke the provisional attachment as specific mechanism for the same has been given under Prohibition of Benami Transactions Act, 1988. In this regard, the 1 Respondent places reliance on the judgement of the Hon'ble Supreme Court in Embassy Property Developments Pvt. Ltd. Vs. State of Karnataka and Others [2019 SCC OnLine SC 1542] wherein the following was held: The only provision which can probably throw light on this question would be sub-section (5) of Section 60, as it speaks about the jurisdiction of the NCLT. Clause (c) of sub-section (5) of Section 60 is very broad in its sweep, in that it speaks about any question of law or fact, arising out of or in relation to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause a secured creditor has a prior secured interest (Charge) in the property, within the meaning of the expressions used in RDBA and SARFAESI Act. Similarly, mere issuance of an order of attachment under PMLA does no ipso facto render illegal a prior charge or encumbrance of a secured creditor, the claim of the fatter for release (or restoration) from PMLA attachment being dependent on its bonafides. 4. The Learned counsel for the Respondents 2 to 4 has filed a counter on 07.01.2021 challenging the maintainability and prayers sought in the Application before this Adjudicating Authority stating that the jurisdiction of Section 60(5) of the IBC is to act as an Adjudicating Authority to determine questions of priorities of any question of law or facts arising out of or in relation to the Insolvency Resolution based on the issue involved in a given case. The Learned Counsel for the 2nd to 4th Respondents state that if the intent of the IBC was to confer this Adjudicating Authority the jurisdiction under Section 60(5) to decide all types of claims relating to the asset of the Corporate Debtor, then Section 18(f)(vi) would not have provided for determination of ownership by a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.04.2021, the present Application viz., MA(IBC)/05(CHE)/2020 has become infructuous. Furthermore, from our records, it can be seen that the second prayer sought by the Applicant has been dismissed by this Adjudicating Authority vide daily order dated 25.02.2022. Accordingly, MA(IBC)/05(CHE)/2020 stands Closed. IA(IBC)/599(CHE)/2021 1. The Application IA(IBC)/599(CHE)/2021 has been filed by the Applicant viz., C. Ramasubramaniam, Liquidator of the Corporate Debtor. The Corporate Debtor has been ordered for Liquidation vide Common Order dated 20.04.2021 and that the properties provisionally attached by the 151 Respondent are all assets of the Corporate Debtor which form part of the Liquidation Estate. It is averred by the Applicant that, unless the order of the Provisional Attachment is quashed, the Liquidator will not be able to proceed further with the Liquidation Process. 2. The Applicant relies on the decision of the Hon'ble Supreme Court in Alchemist Asset Reconstruction Company Limited Vs. Hotel Gaudavan Private Limited [(2018) 16 SCC 94 wherein it was held that once a moratorium is imposed under the IBC, any proceeding initiated against the Corporate Debt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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