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TMI Blog2025 (3) TMI 1353X X X X Extracts X X X X X X X X Extracts X X X X ..... e been preferred by the appellants who were impleaded as Defendants. The application for impleadment filed by the appellant was allowed by the Adjudicating Authority. One appeal has been filed by accused Smt. Nowhera Shaik and accordingly the group of appeals were taken together for its disposal. Brief facts of the case: 2. It is a case where multiple FIRs were registered at various police stations across the country against Smt. Nowhera Shaik, Biju Thomas, Molly Thomas and many others involved for offence under Section 406,409,420,506 and 120-B of IPC, 1860 and Section 5 of Telangana Depositors Financial Establishment Act, 1999 (hereinafter referred to as 'the Act of 1999') and Section 6 of the Price Chits & Money Circulation Schemes (Banning) Act, 1978 (in short 'the Act of 1978‟). 3. The first FIR bearing No. 154/2012 was registered with Central Crime Station, Hyderabad and thereupon series of FIRs were registered which are as under: Sl. No. FIR No. Police Station State 1. 154/2012 Central Crime Station, Hyderabad Telangana 2. 170/2018,33/2019, 40/2019, 53/2019 Central Crime Station, Hyderabad Telangana 3. 66/2018,67/2018 PS Kalkada, Chittor District And ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous banks across the country and 08 accounts in UAE and Saudi Arabia. Smt. Nowhera Shaik and others diverted the depositors amount to their personal accounts routed through company's bank accounts for wrongful gain and amassed huge movable and immovable assets by utilizing illegally gained money of depositors. Smt. Nowhera Shaik was not in possession of valid permission either under Banking Regulation Act, Companies Act, RBI Act or from any other Government agencies, such as SEBI for collection of deposits. 7. Based on the FIRs, the respondent recorded ECIR on 05.11.2018 and caused investigation under the Prevention of Money Laundering Act, 2002 (in short 'the Act of 2002'). After completion of the investigation, preliminary Charge Sheet under Section 218 Cr.PC was filed against the accused which include Smt. Nowhera Shaik and many others named above. 8. The respondent thereupon provisionally attached the properties to protect the investors. The Provisional Attachment Order has been confirmed by the Adjudicating Authority after allowing the application for impleadment filed by the appellants other than Smt. Nowhera Shaik, who was otherwise a Defendant in the OC submitted by the E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 018, the Plaintiffs/ Appellant filed Execution Petition No.333 of 2018 (hereinafter 'EP') in O.S.No.896 of 2015 for delivery of possession. The City Civil Court, Hyderabad vide Order dated 15.03.2019 issued a Warrant of Possession to the Court Bailiff to hand over possession of the said land. The Court Bailiff handed over possession of the subject property after clearly demarcating the same vide Panchnama dated 23.03.2019 and Possession Receipt dated 23.03.2019 to the Plaintiffs/ Appellant in the presence of witnesses and thereby the Plaintiffs/ Appellant became the absolute owners and possessors of the suit property; (vii) The Government of Telangana vide G.O. Rt. No.649 dated 27.06.2019 attached the said properties under section 7(3) of the Telangana State Protection of Depositors of Financial Establishment Act, 1999. Being aggrieved by the said order, the Appellant filed Writ Petition No.15019 of 2019 dated 18.07.2019 before the Hon'ble High Court of Telangana seeking deletion of the said properties from the G.O; (viii) The Hon'ble High Court of Telangana disposed of Writ Petition No.15019 of 2019 vide order dated 31.07.2019 while granting liberty to the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eduled offence and thereby attachment of the property is wholly illegal. The reference of the judgment of the Apex Court in Pavana Dibbur Vs. Directorate of Enforcement reported in 2023 SCC Online SC 1586 was given, apart from the judgment of the Punjab and Haryana High Court in the case of Seema Garg Vs. Directorate of Enforcement reported in 2020 SCC Online P&H 738. The judgments aforesaid were referred to support the argument that when the appellants are not accused, their property could not have been attached because it would not fall in the definition of "proceeds of crime" given under Section 2(1)(u) of the Act of 2002. For invoking Section 2(1)(u) of the Act of 2002, the attachment can be of the property derived or obtained directly or indirectly by any person as a result of criminal activity relating to a scheduled offence. Since the property in question do not fall in the definition of "proceeds of crime", there was no reason for the Adjudicating Authority to confirm the attachment. 12. The reference of the judgment of the Apex Court in the case of Vijay Madanlal Choudhary Vs. Union of India reported in 2022 SCC OnLine SC 929 and the judgment of Delhi High Court in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oring that the suit before the City Civil Court was not contested by any of the Defendants and therein the main accused Smt. Nowhera Shaik and her company M/s Heera Gold Exim Ltd. was not even impleaded as party defendant though the property was conveyed and existing in the name of M/s Heera Retail Pvt. Ltd. much prior to the decree. In fact, property was conveyed in favour of M/s Heera Retail Pvt. Ltd. under Sale Deed before the decree of Civil Court dated 19.11.2018. The decree aforesaid is otherwise collusive in nature as would be coming out from the order passed by the City Civil Court. It is otherwise a settled law that a decree would be binding on the parties and not on the person who was not made party to the Civil Suit. The exception may be if the suit is filed in representative capacity which is not the case herein. 17. The learned counsel for the respondent made detailed argument thereupon which would be referred while recording finding in reference to the arguments raised by the appellants. It is to avoid repetition of one and the same facts. Finding of the Tribunal 18. These appeals are arising out of the provisional attachment order and its confirmation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted a sale deed in favour of the accused‟ company M/s Heera Retail Pvt. Ltd. in the year 2016 itself whereas decree was passed in the year 2018. At the time of filing of the suit, land in question was existing in the name of M/s Neelanchal Technocrats Pvt. Ltd. in pursuance to a sale deed which was not challenged in the suit. It would be borne out from the Civil Suit and decree. The relevant paras of the Civil Suit are quoted hereunder: "12. It is further submitted that the Smt. Bhakthwar Begum the widow of Nawab Syed Ahmed, died on 16.12.2009 and one of the son's of Nawab Syed Ahmed, by name Syed Akber Ali alias Zahoor Nawab died on 25.09.2009 issueless. The plaintiffs are the only surviving legal heirs and successors of said Late Nawab Syed Ahmed. 14. That while the matters stood as above, to their utter shock and dismay recently in the second week of November 2015, it has come to Plaintiffs' knowledge that Defendant No. 1 - M/s. Bayer Bio Science Pvt. Limited, a private company is claiming the suit-scheduled property on the basis of some invalid and created documents. Plaintiffs' enquiry revealed that Defendant No.1, is claiming the suit-scheduled property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the surviving legal heirs. Constructive possession of the property was handed over by the Receiver cum Commissioner as per the Final decree passed by the Hon'ble High Court on 09.2.1962 and the plaintiffs are enjoying the constructive possession of the property. Now in this suit, the 1" defendant is claiming the property on collusive, fabricated Sale deed in favour of defendant No.2 and who in turn entered agreements with defendants No.3 and 4. The defendants have no manner of rights. The above case of plaintiff is proved from the Ex.A1 the preliminary in CS NO.18/1958, Final decree in Ex.A4, allotment of property to defendant in the said suit as per Ex.A3 and appointment of Receiver in Ex.A2. The sale deeds in Ex.A5 and Ex. A6 also supports the suit property was one of the property purchased by Nawab Salarjung. The same is also the subject matter in Civil Suit NO.13/1958. The constructive possession of the suit property also proved from the evidence of PW1 and the documents marked. Defendant No.4 and Defendant No.2 failed to contest the suit by their proper representation and disproved the plaintiffs case as above said. Therefore, for the above said reasons, the plaintiffs hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... G S on 28.01.201 6 vide UTR No. ICMS1601 28001354 M Rs. 3,48,48,00 0 debited form the A/c No. 914020023 999992 of HEERA RETAIL HYDERAB AD PRIVATE Ltd. on 01.07.201 6 through RTGS/NEF T vide UTIBH160 07481249 from AXIS Bank, Himayat Nagar Rs. 23,500 was paid by way of cash. Total Rs.10,48,7 1,500 23. The property in question was existing in the name of Heera Retail Pvt. Ltd. of Hyderabad on the payment of consideration of Rs.5 Crores and other amount of Rs. 2 Crore paid by M/s Heera Gold Exim Ltd. and Rs.3.48 Crore by M/s Heera Retail Pvt. Ltd. much prior to the decree dated 19.11.2018. The statement given above shows that the property in question was existing in the name of M/s Heera Retail Pvt. Ltd. out of proceeds of crime much prior to the decree and was not challenged in the suit and M/s Heera Retails Pvt. Ltd. was not even made party to the suit. 24. Apart from the Civil Suit, the appellant even preferred a Writ Petition No. 15019/2019 to challenge the attachment of the property under the Act of 1999. The Writ Petition was disposed of with liberty to the appellant to avail alternate remedy under Section 7(3) of the Act of 1999. The appellant accordingly approached the Met ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , for which effect, the said agreement holder filed a civil suit before the X Addl. Chief Judge with a prayer to grant ad-interim injunction restraining the 6th and 7th respondents and their agents from alienating the petition scheduled properties." The Defendant No. 6 therein was Smt. Nowhera Shaik, the main accused and Mubarakand M/s Heera companies were defendant Nos. 7 and 8. As per the statement of fact given in Para 2.4, Smt. Nowhera Shaik and Mumbarak claimed the property in question to have purchased from M/s Neelanchal Technocrats. It is necessary to add that M/s Neelanchal Technocrats was party to the Civil Suit preferred by the appellants before City Civil Court. It did contest collusive suit to save it from attachment because first FIR was registered in the year 2012 itself. It is a fact that much before the decree of Civil Suit by the order dated 19.11.2018, a sale deed was executed in favour of M/s Heera Retail Pvt. Ltd. and no suit for cancellation of Sale Deed was ever filed by any of the party. 25. It is further necessary to add that decree in favour of the appellants can operate against the defendant to the suit but cannot operate against a person who was not pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Pradeep Mehra (supra) in ignorance of the facts that this Tribunal is not exercising power of Executing Court, rather need to analyze the issues on legal framework. It is further with the analysis as to in what manner the decree was passed by the City Civil Court. The City Civil Court has referred to the sale deed prior to filing of the suit yet passed decree without suit for cancellation of the sale deed. It is more so when cause of action for filing suit was shown in reference to the sale deed and further agreement to sale for the property in question. It even ignored that to make out a cause of action, the sale deed was not placed on record though referred in the civil suit. The Court even ignored that no contest to the suit has been made thus was required to be cautious to consider each relevant issue. The Court has ignored that a declaration of title cannot be against a person holding the property under a registered deed unless cancellation of deed has been sought on prescribed court fees. We cannot ignore all those legal issues.The necessity of filing a suit for cancellation of sale deed before seeking any other relief has been dealt with by the Andhra Pradesh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that the appellants are not accused and, therefore, their property could not have been attached. Reference on the judgments of the Supreme Court and High Court has been given in ignorance of the fact that the property was existing in the name of the accused‟ Company M/s Heera Retail Pvt. Ltd. which is borne out from the record of the Sub-Registrar. The claim of the appellants is based on the Civil Suitwhere M/s Heera Retail Pvt. Ltd. was not a party. The decree in the Civil Suit binds only the parties and not the others. The property came to the accused's company pursuant to the sale deed in its favour in the year 2016 by M/s Neelanchal Technocrats Pvt. Ltd. who was holding it under the deed and whose title and sale deed was never challenged by the appellants even while filing a suit to claim their right. The execution of sale deed was in the knowledge of the appellant as is coming out from the suit yet it was not challenged. The accused colluded with the appellants after registration of the FIR in the year 2012. The suit was not contested by M/s Neelanchal Technocrats Pvt. Ltd. after a sale deed in favour of M/s Heera Retail Pvt. Ltd. The property of the accused M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken to submit the list of such other properties has not done so, till date. 9. Further, during the course of search operations on 03.08.2024 at the premises of Petitioner herein, her relatives & associates as well as office of Heera Group, 12 vehicles were seized u/s 17 of PMLA on the reasonable belief that they are purchased out of proceeds of crime. The present market value of the said vehicles is expected to be more than Rs.2 Crores. The proceedings before the Ld. Adjudicating Authority (PMLA) for confirmation of the said seizure may take a few months while the value of the seized vehicles shall continue to depreciate. It is therefore proposed that a prayer may be made before the Hon'ble Court to direct auction of the said seized vehicles and subsequent deposit of the proceed with SFIO or with the Registrar of the Hon'ble Supreme Court for settlement of investors' claim. 10. The contents of the aforesaid Report are true and correct to the best of my official knowledge and records. No part of it is false and no material has been concealed therefrom." 3. The State of Telangana was also directed to file its report. However, due to some difficulties, the State has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmation of attachment would not in any way affect the investors for realization of the amount, rather the order passed by us would also remain subject to the further direction of the Apex Court in pending cases. The detailed order is, however, passed by this Tribunal to clarify the claim of the appellants. With the aforesaid observation, we do not find a case to cause interference in the orders. The appeals accordingly fail and are dismissed. Finding of the Tribunal in the appeal of Smt. Nowhera Shaik 30. The appellant Smt. Nowhera Shaik has filed the appeal to challenge the impugned orders. No argument on her behalf was made while the matter was heard finally and otherwise the matter is sub judice before the Apex Court. Subject to the order of the Apex Court, the order of Adjudicating Authority and Provisional Attachment Order would be governed. The direction aforesaid has been given despite the fact that no argument was made to challenge the impugned orders despite an opportunity and even for that the matter was passed over at the request of the counsel but even in the second round, no argument ..... X X X X Extracts X X X X X X X X Extracts X X X X
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