Allowed

FPA-PMLA-1935/DLI/2017 of The Chief Manager, Syndicate Bank v/s The Deputy Director Directorate of Enforcement, Delhi & Ors.

ATFP15 Mar 2018FPA-PMLA-1935/DLI/2017

Case brief

AI extract

What is this about?

The Appellate Tribunal allowed appeals against the confirmation of provisional attachment orders under the PMLA. Holding that the collateral property was purchased using funds remitted by banks before loan sanction and not from proceeds of crime, the Tribunal set aside the attachment, relying on the overriding effect of the RDB Act, 1993.

What did the court decide?

The impugned order confirming the attachment of the residential flat was set aside. It is held that the property was not purchased from proceeds of crime and the banks are entitled to recover dues as

FPA-PMLA-1935/DLI/2017 of The Chief Manager, Syndicate Bank v/s… — Money Laundering | ATFP (2018)

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APPELLATE TRIBUNAL, PREVENTION OF MONEY LAUNDERING ACT AT NEW DELHI

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Date of Decision: 15.03.2018

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FPA-PMLA-1935/DLI/2017

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The Chief Manager, … Appellant/Applicant Syndicate Bank Versus The Deputy Director Directorate of Enforcement, Delhi & Ors. … Respondent And FPA-PMLA-1974/DLI/2017 State Bank of India, … Appellant/Applicant Versus The Deputy Director Directorate of Enforcement, Delhi & Ors. … Respondent Advocates/Authorized Representatives who appeared For the Appellant in Appeal no.1 : Shri V. Sudeer, Advocate For the Appellant in Appeal no.2 : Shri Abhay Gupta, Advocate Shri U.C. Mittal, Advocate For the Respondent No. 1 : Shri Atul Tripathi, Advocate CORAM JUSTICE MANMOHAN SINGH : CHAIRMAN SHRI G.C. MISHRA : MEMBER JUDGEMENT

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FPA-PMLA-1935/DLI/2017

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Since both the appeals are arising out same orders & involve in the common interest over the attached property and since the factual and

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FPA-PMLA-1935 & 1974/DLI/2017

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legal issues in both the appeals are similar, so the aforesaid appeals are taken up together for a common order.

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The Syndicate Bank (appellant in appeal no. 1) and the State Bank of India (SBI) (appellant in appeal no. 2) were defendant nos. 8 &7 respectively in O.C. no. 763/2017.

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These two Appellants have preferred the present appeals u/s 26 of Prevention of Money Laundering Act-2002 (PMLA) against the impugned order dt. 24.7.2017 wherein the ld. Adjudicating Authority has confirmed the attachment of the following immovable property confirming the provisional attachment order no. 4/2017 dt. 31.03.2017:-

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Sr.	Description of Property	Value ( In Rs. )
no.
1.	601, Type Sovereign, 6^thFloor, Section-	80,50,549.80/-
	49, Vatika City, Gurgaon, Sohna Road, Haryana

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The brief relevant facts of the appeals are as below:-

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On the basis of a written complaint filed by Appellants the CBI registered two separate FIRs against M/s Suhrit Services Pvt. Ltd. (SSPL) (R.2), Dhiren Tamang, (R.3) Anoop Pradhan (R.4) M/s Binita Pradhan (R.5), Smt. Madhavi Shrestha (R.6) and others for commissions of offence u/s 120-B, 420,406,468,471,IPC and section 13(2) r/w section 13(1)(d) of PC Act 1988 regarding the alleged fraud committed where by the appellants were cheated.

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Pursuant to the aforesaid FIRs, Sections 120-B, 420 of IPC, being scheduled offences, the Enforcement Directorate on 26.03.2013 registered an ECIR no. DLZO/05/2013/AKS against the aforesaid accused persons and others.

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It is revealed that SSPL (R-2) having its registered office at S-6, Building no. 18 &19, Gulmohar Community Centre, Youshf Sarai, New Delhi had approached the Appellants for loan facilities which was agreed to by the Appellants. In order to collaterally secure the said loan M/s SSPL created mortgage of the undernoted properties in favour of Syndicate Bank led consortium.

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i. Property bearing no B-230, admeasuring 707.99 sq mtr situated at Florence Elite Sushant Lok III, Gurgaon (Haryana)

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ii Residential flat bearing no. A-09/110 P-4, admeasuring 553.83 sq mts situated at 10^th Floor Block –A, Sahara Grace Gurgaon (Harayana).

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Iii Residential Flat bearing no. 312-A, admeasuring 244 sq mts situated at 12^th Floor Hamilton Court, DLF City Phase-IV, Gurgaon (Haryanan).

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Besides the above there had been one other property bearing i.e. “Flat no. 601, Type Sovereign, 6^th Floor, Sector-49, Vatika City, Sohna Road Gurgaon, Haryana” title to which was acquired by M/s SSPL by way of “Apartment Buyers Agreement dt. 25/02/2005 executed by “Vatika Greenfield Projects Pvtl Ltd.”, A Company registered under the Companies Act, 1956, having its registered office at 308, Vishal Bhawan, 95, Nehru Place New Delhi. In order to collaterally secure the aforesaid loan a Tripartite Agreement dt. 18/07/2007 entered between M/s SSPL and “Vatika Greenfield Projects Pvt. Ltd.” and Syndicate Bank. M/s SSPL agreed to create mortgage of the said property in favour of Syndicate Bank Consortium and further agreed not to transfer/alienate or to create any charge over the said property without the prior consent of the Syndicate Bank consortium. This is worth to submit here that Syndicate Bank Consortium was acting as leader of consortium with SBI. In

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addition to above M/SSPL also executed an agreement to mortgage dt. 29.03.2007 in favour of Syndicate Bank. Copy of Tripartite agreement dt. 18.7.2007 including agreement to mortgage dt. 29.03.2007 is placed on record.

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It is also revealed that in connivance with other accused persons the R-2 defrauded the appellants in their cash credit loan account by dishonest means of inflating the value of stocks. They had also indulged in removal of hypothecated stocks without banks knowledge through illegal sale of cars. SSPL company account remains irregular since 6/12/2008 as such the said account was classified as NPA on 31.03.2009.

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That on 29.03.2007 borrower M/s. Surhit Services Pvt. Ltd. (SSPL) executed agreement to Mortgage the Property in question (being owner of the said property in terms of the “Apartment Buyers Agreement” dated 25.2.2005 executed by M/s Vatika Projects Ltd. – (as the Builder was known at the relevant time) in favour of the appellant Syndicate Bank as security to the loan of Rs. 26.50 Crores sanctioned to M/s SSPL by Syndicate Bank. Copy of the Agreement to Mortgage dated 29.03.2007 is filed.

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The Respondent No. 2 Borrower M/s SSPL, the Builder M/s Vatika Land Base Ltd. and the appellant Syndicate Bank entered into a Tripartite Agreement dated 18.07.2007 wherein amongst others it is duly recorded that:

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a) Syndicate Bank had agreed to grant credit facilities to the extent of Rs. 26.50 Crores to the Borrower M/s SSPL.

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b) The Builder M/s Vatika Land Base Ltd. has agreed to construct and sell to the Respondent No. 2 M/s SSPL a three bed room plus study room being Flat No. 2/601, Type: Sovereign, Block No. II, 6^th Floor, Vatika City, Sohna Road, Gurgaon and the said property will be ready by March, 2008.

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c) The Respondent no. 2 M/s SSPL has paid to the Builder M/s Vatika Land Base Ltd. a sum of Rs. 44,18,970/- towards the cost of the flat and the balance of Rs. 33,87,640/- shall be paid by the said Respondent No. 2 M/s SSPL as and when demanded by the said Builder.

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d) The Respondent No. 2 M/s SSPL and the Builder agree that the Appellant Syndicate Bank will have unrestricted right of entry and taking possession of the flat in question.

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e) The said Respondent No. 2 M/s SSPL agrees that in case of any default in paying the loan amount to Appellant Syndicate Bank by said Respondent No. 2, the Builder will accept the new person brought by the Appellant Syndicate Bank as the purchaser and accordingly execute the documents in their favour.

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The Appellants above were the members of the Consortium of Banks. The Syndicate Bank was the lead Bank of the Consortium. In exercises it power under SARFAESI Act, the Syndicate Bank issued notices to M/s SSPL u/s 13(2) of the SARFAESI on 25.08.2009 and possession of three mortgaged properties mentioned below were taken on 16.02.2010 and on 23.03.2010. The Appellant Syndicate Bank, being the lead bank, sold said three properties of the Respondent No. 2 M/s Surhit Services Pvt. Ltd. (M/s. SSPL) and shared the proceeds with the other Appellant State Bank of India and a sum of Rs. 3.22 Crores being the

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FPA-PMLA-1935 & 1974/DLI/2017

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share of State Bank of India has been credited towards the loan account of SSPL.

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Admittedly the property in question Flat No. 2/601, Type: Sovereign, Block No. II, 6^th Floor, Vatika City, Sohna Road, Gurgaon is a secured asset of the Appellant Banks in terms of the Tripartite Agreement dt. 18.07.2007 r/w Agreement to Mortgage dt. 29.03.2007 being part of the security to the amount of Credit Facilities by Appellant Banks granted by Syndicate Bank to the Respondent No. 2 M/s SSPL.

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The loan amounts were released by the Appellant Syndicate Bank in 5 installments, as and when demanded by the Builder M/s Vatika Land Base Ltd. (hereinafter referred to as “the Builder”), remitted a sum of Rs. 28,95,698/- between 03.05.2007 to 17.09.2008 towards the property in question. The said amount of Rs. 28,95,698/- was remitted by debiting/liquidating the Fixed Deposit kept by the Respondent No. 2 M/s SSPL much prior to 30.09.2008.

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It is contended by the Appellants that on 25.08.2009 the Appellant Syndicate Bank issued notice under Sec. 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 calling upon the Respondent No. 2 M/s SSPL to pay the dues of the appellant Bank failing which the Bank will amongst others sale the four immovable properties being secured assets of the Bank.

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It is contended by the appellant Syndicate Bank that it could not sell the property in question at that time as the same was not ready.

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The Fixed Deposit kept by the Borrower M/s SSPL having been exhausted on 06.09.2011 appellant Syndicate Bank in order to protect its security and perfect the sole right of the lenders to the property in question as their secured asset, the paid the last installment demanded by the Builder amounting to Rs. 7,35,876/- and Rs. 1,08,988/- totaling Rs. 8,44,864/- by debiting the Overdraft Account of the respondent No. 2 M/s SSPL. It is alleged by the appellant that though appellant Syndicate Bank has remitted a sum of Rs. 37,40,562/- to the Builder towards the cost of the property in question only a sum Rs. 8,44,864/- is from the funds of the borrower M/s. SSPL kept in fixed deposit for the purpose much prior to 30.09.2008.

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It is mentioned that the sum of Rs. 37,40,562/- remitted by the appellant to the Builder towards the cost of the property in question by liquidating the fixed deposits kept for the said purpose by the respondent no. 2 is much prior to 30.09.2008.

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The Appellant Syndicate Bank filed O.A. No. 143/2011 on 26.09.2011 in Debt Recovery Tribunal-I, Delhi for recovery of Rs. 28.27 crores from the respondent no. 2 M/s SSPL.

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The property in question was attached by CBI on 29.01.2013 in execution process under Sec. 83 of the Cr. P.C. in pursuance of the order of the Court of the learned Shri V.K. Gupta, Additional District & Sessions Judge, CBI Court, Patiala House Courts, New Delhi.

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The Appellant Syndicate Bank moved application dated 05.02.2013 before the CBI court of praying that the property in question be de-sealed so as enable them to sell the same under Sec. 13(4) of the Securitization

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and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to “the SARFAESI Act).

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The CBI in its reply filed stated that the appellant Syndicate Bank suffered a loss of Rs. 26.24 crores and State Bank suffered a loss of Rs. 8.96 crores and stated as under:-

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“Since Syndicate Bank suffered a loss as above therefore, it may be allowed to recover its loss incurred due to the act of M/s Surhit Services Pvt. Ltd. After valuation of the flat/property as on date.”

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The CBI Court vide order dated 04.03.2013, on an erroneous appreciation of the facts and circumstances of the case, held that the appellant Syndicate Bank shall be paid only the amount financed by it to purchase the property.

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It is the case of the Syndicate Bank that there being no irregularity or illegality in Syndicate Bank taking the property in question as security and the appellant Syndicate Bank being entitled to sell the same and appropriate the proceeds towards the dues of the Respondent no. 2 M/s SSPL under Sec. 13 (4) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 the appellant Syndicate Bank filed Criminal Revision Petition No. 299 of 2013 in May, 2013 before the Hon‟ble High Court of Delhi against the order of the CBI court dated 04.03.2013.

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The High Court by order dated 07.11.2014 was pleased to de-seal the property in question in favour of the appellant Syndicate Bank noting the submission of the Bank “that it is a secured creditor and is entitled to recover its due in terms of Sec. 13 (4) of the Securitization and Reconstruction of Financial Assets and enforcement of Security Interest

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Act, 2002.”

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The DRT on 23.09.2015 issued Recovery Certificate No. 394 of 2015 in T.A. No. 01/2014 (Originally O.A. No. 143 of 2011) in favour of the appellant and against Respondent no. 2 for recovery of Rs. 28,28,68,238/- (Rupee twenty eight crores twenty eight lakhs sixty eight thousand two hundred thirty eight only) and directed the respondent no. 8 Builder to execute sale deed of the property in question in favour of the appellant. The relevant portion of the DRT‟s order dt. 23.09.2015 is reproduced below:-

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“ 15. The applicant has stated that the residential property no. 2/601, SOV-II, 3B/RS, 6^th Floor, Gurgaon was greed to be sold to DI by D6. The applicant has stated that the entire payments towards the cost of the flat has been remitted by applicant on behalf of D1 to D6. D1, D6 and the applicant has entered into tripartite agreement. D1 by an agreement to mortgage AW-1/19 dt. 29.03.2007 agreed to create mortgage of the property in favour of the applicant bank. The agreement with D6 executed by D1 on 25.02.2005, AW-1/20 was produced before the bank. The original of this document is seized by the CBI and copy is produced before court. Since the entire sale consideration on behalf of D1 is paid by the applicant to D6, the applicant is entitled to execute the sale deed in its favour and D6 is directed to execute the sale deed in favour of the applicant. The applicant shall be entitled to possession of the property and thereafter the sale of the property to recover the debt .”

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The Recovery Officer, on 27.11.2015 issued Demand Notice under Sec. 25 to Sec. 28 of the Recovery of Debts and Due to Bank and Financial Institutions Act, 1993 and rule 2 of the Second Schedule to the Income Tax Act, 1961 to the Respondent nos. 2, 5 and 6.

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On September, 2016, Sec. 31-B of the Recovery of Debts and Bankruptcy Act, 1993 was brought into force with effect from 01.09.2016. Therefore the said Act will have an overriding effect over the PMLA.

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Sri Rajesh Kumar Jain, Deputy Director, Director of Enforcement, New Delhi passed Provisional Attachment Order No. 04/2017 dated 31.03.2017 attaching the property in question namely property no. 601, Type Sovereign, 6^th Floor, Sector-49, Vatika City, Gurgaon, Sohna Road, Haryana.

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Shri Rajesh Kumar Jain, on 28.04.2017, Deputy Director of Enforcement, New Delhi filed complaint no. OC-763 of 2017 before the Adjudicating Authority under the PMLA.

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It is averred in the appeal that the Appellant is also a victim of fraud played by the above named persons. The Appellant Syndicate Bank had granted credit facilities to the extent of Rs. 26.50 Crores to M/s SSPL. Recovery Certificate for recovery of Rs. 28,27,18,238/- (Rupees twenty eight Crores twenty seven lakhs eighteen thousand two hundred thirty eight only) has been issued by the Debt Recovery Tribunal vide recovery Certificate No. 394/15 dated 23.09.2015 which the Appellant Syndicate Bank is not able to recover so far.

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As per the Provisional Attachment Order No. 04/2017 in ECIR No. ECIR/05/DZ/2013/AD (AKS) dated 31.03.2017, a sum of Rs. 8.96 Crores is outstanding against M/s SSPL with State Bank of India against the amount of Loan of Rs. 13 Crore sanctioned to M/s SSPL by the State Bank of India on 30.09.2008. As per Deputy Director Enforcement, Delhi Zone-I, New Delhi, the accused persons named above, “have committed the offence of Money Laundering as defined under Section 3 and punishable under Section 4 of the PMLA, 2002; as the money has been transferred and layered and further invested in the properties procured

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in the name of entity.” That according to the Deputy Director, the property in question is Flat No. 2/601, Type: Soverign, Block No. II, 6^th Floor, Vatika City, Sohna Road, Gurgaon

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The case of the appellant was that the above said conclusion of the Deputy Director is prima facie erroneous in as much as the Loan of Rs. 13 Crore was sanctioned to M/s SSPL by the State Bank of India only on 30.09.2008 where SSPL paid the consideration of the Property in question in full or otherwise made provision for payment of the balance amount as and when demanded by the builder M/s Vatika Land Base Ltd. by way of fixed deposits with the appellant prior to 30.09.2008. This is evident on the face of the record and therefore the consideration towards the cost of the property in question did not come from proceeds of crime and the Adjudicating Authority could not have in law attached the same. The proceeds of the crime could not have come into existence prior to 30.09.2008.

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However, the Adjudication Authority has confirmed the provisional attachment order by passing the impugned order on 02.08.2017.

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Admittedly prior to passing of impugned order, this Appellate Tribunal in State Bank of India Vs. Enforcement Directorate FPA-PMLA1026/KOL/2015 in 11 others by order dated 14.07.2017 has held as under:

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65. From the entire gamut of the mater we are of the view that there is no nexus whatsoever between the alleged crime and the two bank who are mortgagee of all the properties which were purchased before sanctioning the loan. Thus no case of money-laundering is made out against banks who have sanctioned the amount which is untainted and pure money. They have priority to the secured creditors to recover the loan amount/debts by sale of assets over which security interest is created, which remains unpaid. The Ld. Adjudicating Authority has not appreciated the facts and law FPA-PMLA-1935 & 1974/DLI/2017

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involved in these matters and the primary objective of section 8 of PMLA is that the Adjudicating Authority to take a prima facie view on available material and facts produced. All the contentions raised by Mr. Matta has no substance. The provisional attachment in the present matter is bad and against the law.

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However, ignoring the order of this Tribunal, the Adjudicating Authority confirmed the Provisional Attachment of the property in question provisionally attached by Deputy Director, Director of Enforcement, New Delhi by order No. 04/2017 dated 31.03.2017.

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The Appellate Tribunal on 28.08.2017 has also in HDFC Vs. The Joint Director, Directorate of Enforcement, Goa FPA-PMLA-

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1368/GOA/2016 by order dated 28.08.2017 has filed as under:-

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“15. The Parliament has amended the SARFAESI Act, 2002 by inserting the Section 31B in the said Act w.e.f. 01.09.2016. The effect of the said FA-PMLA-1429/KOL/2016 page 30 of 31 amendment has already been discussed in our judgment dated 14^th July, 2017, State Bank of India (Supra).

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16. The facts and the legal issues involve in the present appeals are identical to the facts and the legal issues involved in the groups of matter which has been decided by this tribunal on 14.07.2017 (Supra).

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17. Keeping in view, the facts and circumstances of the present appeals and the judgments cited herein above in the group of matters of State Bank of India and 11 others Banks (Supra), we are of the considered view that the Impugned Order dated 16.06.2016 and the Provisional Attachment Order dated 17.12.2015 are not legally correct and liable to be set aside.

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18. Since we have decided the legal issue of overriding effect of SARFAESI Act over PML Act, 2002, in favour of the appellant, there is no necessity to examine other issues raised by the appellant in the appeal.

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19. Accordingly the appeal is allowed.”

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Admittedly, it is not the case of the Deputy Director that the property was purchased by the respondent no. 2 SSPL from the amount financed by the State Bank of India or Syndicate Bank.

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The case of the Appellant Banks are in much stronger footing than

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the case cited above

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Rather the respondent no. 1 Director, Enforcement has conceded that the property in question has not been purchased from the proceeds of the crime. The appellant Syndicate Bank in Para 3 (f) of the reply field by it before the Adjudicating Authority has shown that the property in question has not been purchased from the proceeds of the crime as loan was sanctioned only on 30.09.2008 whereas the cost of the property was paid much before the said date. The respondent no. 1 in his rejoinder has avoided replying to this contention of the appellant.

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There is no material nor any pleading of any party contrary to the fact that no transaction has been shown that any amount of the loan of Rs. 13 Crores sanctioned to the Defendant No. 1 by State Bank of India on 30.09.2008 was used for the purchase of the property in question. A sum of Rs. 5 Crores and Rs. 2.50 Crores is said to have been transferred to the account of the respondent no. 2 with the appellant Syndicate Bank on 12.06.2008 and 27.06.2008 respectively by the respondent no. 7 State Bank of India (SBI). (Para 7.3 at Page 6 of the Complaint). But this is prior to sanction of the loan by SBI on 30.09.2008. Therefore the transfer cannot be from the proceeds of the crime.

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The amount of Rs. 5 Crore transferred to the Account of the respondent no. 2 on 12.06.2008 to the appellant Syndicate Bank was to clear another loan account with of the said respondent no. 2 with Syndicate Bank i.e. OSL 01/08. (Please see statement of account of the respondent no. 2 with Syndicate Bank entry for Rs. 4,97,62,012.19 dated 13.06.2008. Similarly, the amount of Rs. 2.5 Crores transferred to the account of the respondent no. 2 with the

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appellant Syndicate Bank was to reduce the overdrawn limit in the account (Please see statement of account of the respondent no. 1 with Syndicate Bank entry for Rs. 2.5 crores dated 27.06.2008.

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Even borrower the (Respondent no. 2 on 17.06.2008 requested the SBI to transfer a sum of Rs. 25 lakhs to their account with Syndicate Bank (Para 7.6 at Page 7 of the Complaint). But as per appellant Syndicate Bank the said request was not acted upon by SBI (there is no such entry in the account of the Respondent no. 2 with Syndicate Bank (Statement of Account does not show any such entry). In any case, this also prior to 30.09.2008. Therefore, it is apparent on the face of the record that the proceeds of the crime were not used to purchase the property in question.

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It is pertinent to mention here that we are not concerned here as to what extent, the appellant would be entitled to record the loan due and we are not rendering finding in this regard. The said amount would be crystalilzed before the appropriate authority. We are merely concerned in these matters is as to whether impugned/attachment orders could be have been passed in the facts of the present case and law settled on the issues involved.

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We are also made it clear that the complaints filed against the borrowers under the schedule offences and under PML Act would continue and the same are to be determined as per their merit and without any influence of our finding and Judgment. As far as the appellants in the above appeals are concerned, no complaint is pending. It is not argued on behalf of the respondent no. 1 that the appellants are not victim and innocent parties, FPA-PMLA-1935 & 1974/DLI/2017

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rather it was argued that after conclusion of trial under the PML Act, they are entitled to recover the properties. The said arguments unacceptable in view of amendment carried out.

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Under the facts and circumstances of the case and in view of the Judgment of this Tribunal in State Bank India Vs. Enforcement Directorate FPA-PMLA-1026/KOL/2015 and 11 others dated 14.07.2017 and HDFC Vs. The Joint Director, Directorate of Enforcement, Goa dated 28.08.2017 the above mentioned appeals are allowed. The impugned order is set-aside qua the appellant banks.

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(Justice Manmohan Singh) Chairman

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(G.C. Member) Member

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New Delhi, 15^th March, 2018

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„s‟

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