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FPA-PMLA-2543/PTN/2018 of Shri Rajendra Kumar v/s The Deputy Director Directorate of Enforcement, Patna

ATFP2 Nov 2018FPA-PMLA-2543/PTN/2018

Case brief

AI extract

What is this about?

The Tribunal disposed of multiple appeals regarding the restoration of possession of immovable properties attached by the Enforcement Directorate. It held that since properties were attached in lieu of value and not confirmed as proceeds of crime, possession must be restored provided appellants deposit specified monthly charges.

What did the court decide?

Restoration of possession of properties to appealants, subject to deposit of Rs. 10,000/- per month as use and occupation charges within two weeks.

FPA-PMLA-2543/PTN/2018 of Shri Rajendra Kumar v/s The Deputy… — Banking and Recovery | ATFP (2018)

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APPELLATE TRIBUNAL FOR SAFEMA, FEMA, PMLA, NDPS & PBPT ACT AT NEW DELHI

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(1) MP-PMLA-4938/PTN/2018 (Stay) FPA-PMLA-2542/PTN/2018
Dr. Pradeep Kumar	… Appellant
Versus
The Deputy Director
Directorate of Enforcement, Patna	… Respondent
(2) MP-PMLA-4939/PTN/2018 (Stay) FPA-PMLA-2543/PTN/2018
Shri Rajendra Kumar	… Appellant
Versus
The Deputy Director Directorate of Enforcement, Patna	… Respondent
(3) MP-PMLA-4940/PTN/2018 (Stay) FPA-PMLA-2544/PTN/2018
Nand Lal HUF	… Appellant
Versus
The Deputy Director Directorate of Enforcement, Patna	… Respondent
Advocates/Authorized Representatives who	appeared
For the appellant :	Shri Anshuman Sinha, Shri Vinay Prakash & Shri Imran Alam, Advocates
For the respondent :	Ms. Shilpi Satyapriya Satyam, Advocate
(4) MP-PMLA-5017/PTN/2018 (Misc.) MP-PMLA-4943/PTN/2018 (Stay) FPA-PMLA-2547/PTN/2018
Shri Shyamal Chakravarty	… Appellant
Versus
The Deputy Director
Directorate of Enforcement, Patna	… Respondent
Advocates/Authorized Representatives who	appeared
For the appellant : Shri Shri Shri	Kirti Uppal, Sr. Advocate Salman Hashmi, Advocate Aditya Awasthi, Advocate

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FPA-PMLA-2542, 2543, 2544 & 2547/PTN/2018

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Page 1 of 7

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For the respondent	: Ms. Shilpi Satyapriya Satyam, Advocate
CORAM
JUSTICE MANMOHAN SINGH	: CHAIRMAN

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ORDER 02.11.2018

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MP-PMLA-5069/PTN/2018, MP-PMLA-4938/PTN/2018 (Stay) & FPAPMLA-2542/PTN/2018, MP-PMLA-4939/PTN/2018 (Stay) & FPAPMLA-2543/PTN/2018, MP-PMLA-4940/PTN/2018 (Stay) & FPAPMLA-2544/PTN/2018, MP-PMLA-5017/PTN/2018 (Misc.), MPPMLA-4943/PTN/2018 & FPA-PMLA-2547/PTN/2018

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By this common order, I propose to decide the fresh applications filed by the appellants for restoration of possession till the disposal of the appeal. In both set of appeals, the following properties were attached:-

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(i) The Property of Dr. Pradeep Kumar is J-205, Jascon Plaza, Circular Road, Ranchi.

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(ii) The property of Shyamal Chakravarty is Flat No. 1A, First Floor, Sugam Hemant Apartments, 75 Bondel Road, Kolkata-700019.

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Both the parties have not acquired from proceed of crime as admitted by both sides but attached in lieu of value thereof.

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The common order has been filed. The facts are taken (in order to decide the two applications) from the case of appeal filed by Dr. Pradeep Kumar.

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The appellant Dr. Pradeep Kumar has filed the appeal under section 26 of Prevention of Money Laundering Act, 2002 against the order dated 3^rd August, 2018.

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FPA-PMLA-2542, 2543, 2544 & 2547/PTN/2018

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Page 2 of 7

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The appeal was filed on 10^th September, 2018. The same was listed for hearing on 20^th September, 2018.

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In the meanwhile, on 15^th September, 2018 the respondent has taken the possession in view of the notice issued on 3^rd August, 2018.

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The counsel for the respondent states that once the possession has been taken the applications are not maintainable.

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In support of her submission, she has referred Rule (5) of Prevention of Money Laundering Act, 2002, (a) where the manner of immovable property prescribed in sub-rule 3, it is stated that where the immovable property confirmed by the Adjudicating Authority, the authorized officer shall issue a direction to the occupant to pay the lease amount or rent in the form of Demand Draft payable to the Directorate of Enforcement.

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(b) Where the immovable property is under joint ownership, the authorized officer may accept the equivalent value of fixed deposit to the extent of the value of the share of the concerned person in the property estimated by the authorized officer, to be involved in the money laundering;

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(c) where the manufacturing process or activity is being carried out, the authorized officer any take possession with a direction to the person incharge of the concerned establishment or factory that gross income and any other monetary benefits which accrue there from shall be deposited

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in the account of the Directorate of Enforcement.

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FPA-PMLA-2542, 2543, 2544 & 2547/PTN/2018

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Page 3 of 7

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The reply to the applications have also been filed. It is argued by her that the before taking the possession 10 days notice was issued to the appellant. She admitting that no doubt the possession was taken before admission of the appeal.

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At this stage the only issue before this tribunal is that as to whether the possession taken by the respondent on 15^th September, 2018 should be restored or not.

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No doubt if the property acquired by the appellant is from proceeds of crime, the argument of the respondent could have been dealt differently. If the present case, the respondent has admitted that the property in question has not been acquired from proceeds of crime. Even in the confirmation order it is mentioned that the same was attached in lieu value-thereof.

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So, it is admitted position that the property which was acquired by the appellant on 20^th March, 2006 at the cost of Rs. 10,71,000/-. The money was used for the purchasing of the flat was taken on loan from the State Bank of India, Ranchi. The appellant has explained all the facts before the respondent when the statement was made to the effect that the amount of Rs. 7.5 Lakh was taken by the appellant on loan in the month of February, 2006 and the rest of the amount was paid to the salary account. The detail was given in para 8 of the appeal.

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The learned counsel for the respondent does not dispute that the property is attached on value thereof because of the reasons that the

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FPA-PMLA-2542, 2543, 2544 & 2547/PTN/2018

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Page 4 of 7

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property was acquired on 20^th March, 2006 and the ECIR was registered on 18^th May, 2012.

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It is stated by the counsel for appellant that the reply to the notice issued under Section 8 (1) has not been dealt in the impugned order. All pleas raised have been ignored in the impugned order.

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The appellant has retired on 30^th July, 2018 and he intended to shift in the flat.

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After the retirement the appellant for no other place and when he was planning to shift at the flat after filing the appeal the respondent suddenly taken the possession of the flat.

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Counsel for the appellant submits that his client is ready to deposit the use and occupation charges with the respondent from the date of passing the impugned order and shall keep on depositing the same till the appeal is finally decided at the cost of Rs. 10,000/- per month in this regard.

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So, it is clear from the said rule the there are many ways to take the possession or to put the conditions in order to preserve the property till the final order is passed in the complaints under schedule offence and PMLA.

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Sub-rule 5 & 6 of Section 8 reads as under:-

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(5) Where on conclusion of a trial of an offence under this Act, the Special Court finds that the offence of moneylaundering has been committed, it shall order that such property involved in the money-laundering or which has been used for commission of the offence of money-

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FPA-PMLA-2542, 2543, 2544 & 2547/PTN/2018

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Page 5 of 7

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laundering shall stand confiscated to the Central Government.

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(6) Where on conclusion of a trial under this Act, the Special Court finds that the offence of money-laundering has not been taken place or the property is not involved in money-laundering, it shall order release of such property to the person entitled to receive it.

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Thus, if both sub-section 5 & 6 of Section 8 are read together it is mandated that if such property involved in the money laundering meaning thereby that in order to take the possession, there is a condition that the property must be involved in the money laundering and if the same is attached in lieu of value thereof, it should be preserved till the final order is passed.

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The appellants in both set of appeals have given an understanding that during the pendency of appeal, the appellants shall not disposed of or to sell the attached flat in any manner. The said undertaking the accepted on behalf of the appellants.

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Thus, it is directed that the possession be restored forthwith subject to the conditions the appellant Dr. Pradeep Kumar and Shyamal Chakravarty each shall deposit Rs. 10,000/- per month as use and occupation charges within two weeks from today including the arrear of purchase and shall keep on depositing the same on or before the 7^th of Every month.

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As far as restoration of possession is concerned, the legal issue involved in the case of Shri Shyamal Chakravarty are same in which the learned counsel for the appellant is agreeable to deposit the use and occupation charges and other terms and conditions as mentioned above. Therefore, the same order shall also apply to the appeal no. FPA-PMLA2547/PTN/2018.

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FPA-PMLA-2542, 2543, 2544 & 2547/PTN/2018

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Page 6 of 7

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Replies to the appeal has already been filed. Rejoinders, if any, be filed by the next date.

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List on 25^th February, 2019.

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Copy of the order be given ‘ dasti’ to both the parties.

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(Justice Manmohan Singh) Chairman

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New Delhi, 2^nd November, 2018

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‘D’

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FPA-PMLA-2542, 2543, 2544 & 2547/PTN/2018

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Page 7 of 7

FPA-PMLA-2543/PTN/2018 of Shri Rajendra Kumar v/s The Deputy Director Directorate of Enforcement, Patna

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FPA-PMLA-2543/PTN/2018 of Shri Rajendra Kumar v/s The Deputy Director Directorate of Enforcement, Patna

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