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TMI Blog2023 (2) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... valid by the Apex Court in Vijay Madanlal Choudhary and others v. Union of India and others [ 2022 (7) TMI 1316 - SUPREME COURT ] and hence, the provisional attachment order passed by the first respondent does not suffer from lack of jurisdiction. The provisional attachment order has been placed before the second respondent for confirmation u/s.8(3) of the PMLA. The alternative remedy is only a self-imposed restriction and it is not an absolute one and in appropriate cases, this Court can exercise its jurisdiction under Article 226 of the Constitution of India in spite of the availability of an alternative remedy. Such exercise of jurisdiction is normally done in cases where the authority has initiated proceedings or passed orders without or in excess of jurisdiction or in cases where there is a serious violation of principles of natural justice or where certain extraordinary/special circumstances exist, which require the exercise of extraordinary power and jurisdiction under Article 226 of the Constitution of India. The law on this issue is too well settled. In the facts of the present case, it is already held that the provisional attachment order passed by the first resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the very same proceedings of the respondents 1 and 2. 4. The brief facts of the case is that the Indian Bank sanctioned a medium term loan to the petitioners in W.P.No.23054 of 2022 to the tune of Rs.150 crores for the purpose of purchase of immovable properties. The borrowers also executed loan documents and they mortgaged their immovable properties and also hypothecated certain movable properties. That apart, the petitioners in W.P.No.23054 of 2022 also availed open cash credit facility to the tune of Rs.90 crores from Indian Bank. They defaulted in the repayment of the loan and hence, was classified as non-performing asset by the Indian Bank on 07.07.2019. Thereafter, proceedings were initiated under SARFAESI Act and symbolic possession was taken by the Indian Bank on 27.01.2020. 5. Indian Bank detected several irregularities in the disbursal and availment of the loan and also in the properties that were mortgaged and it was found to be overvalued by the petitioners in W.P.No.23054 of 2022 and there was also diversion of funds and hence, a complaint came to be lodged against them on 25.04.2022 before the CBI and a First Information Report came to be registered in Crime No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epresented by its Chief Manager v. Government of India [2012 (4) CTC 225]; (b)The Government of India v. Indian Bank and another [W.A.Nos.2614 and 2615 of 2022, dated 13.09.2021]; (c) HDFC Bank Limited v. Government of India [CDJ 2021 Bihar HC 249]; and (d)Deputy Director, Directorate of Enforcement, Delhi v. Axis Bank and others [2019 SCC OnLine Del 7854]. 11. Per contra, the learned Special Public Prosecutor appearing on behalf of the Directorate of Enforcement submitted that the writ petition itself is not maintainable since there is an alternative remedy available to the petitioners to raise all the issues before the Adjudicating Authority. Even if they fail before the Adjudicating Authority, the petitioners can go before the Appellate Tribunal and in the event of failure before the Tribunal, they can approach this Court by filing an appeal. Hence, it was contended that the petitioners cannot be straight away permitted to knock the doors of this Court in exercise of Article 226 of the Constitution of India. To substantiate this submission, the earlier order passed by the Co-ordinate Bench of this Court in A.John Kennedy and others v. Joint Director, Directorate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice that all the petitioners have already raised objections both on facts and on law and it has been submitted before the Adjudicating Authority viz., the second respondent. The second respondent is a quasi judicial authority, who can go into both the facts and law while dealing with the objections raised by the petitioners. The provisional attachment order passed u/s.5 of the PMLA has been held to be constitutionally valid by the Apex Court in Vijay Madanlal Choudhary and others v. Union of India and others [2022 SCC OnLine SC 929] and hence, the provisional attachment order passed by the first respondent does not suffer from lack of jurisdiction. The provisional attachment order has been placed before the second respondent for confirmation u/s.8(3) of the PMLA. The petitioners have also been put on notice by the second respondent and the petitioners have put forward their objections both on facts and on law. The issue as to whether there can be an order of attachment under the PMLA over a property, in which a secured creditor has a prior interest, can always be raised before the second respondent since the second respondent is a quasi judicial authority exercising the powe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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