FPA-PMLA-856/CHN/2015 of Dr. V.M. Ganesan v/s The Deputy Director Directorate of Enforcement, Chennai

ATFP8 Oct 2020FPA-PMLA-856/CHN/2015

Case brief

AI extract

What is this about?

In an application seeking recall of an order disallowing modification of a stay against dispossession, the Tribunal rejected the plea due to non-compliance with unpaid user and occupation charges ordered in 2015, which remained unsatisfied despite High Court confirmation, finding no document explicitly modifying the earlier order. However, the respondent is directed to delay eviction action for tw

What did the court decide?

Application for modification/recall is rejected; Respondent directed to refrain from coercive eviction action till 22.10.2020.

FPA-PMLA-856/CHN/2015 of Dr. V.M. Ganesan v/s The Deputy… — Property and Title | ATFP (2020)

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

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MP-PMLA-7736/CHN/2020 (U.A.) MP-PMLA-7737/CHN/2020 (Recall) MP-PMLA-3143/CHN/2017 (A.D.) MP-PMLA-1745/CHN/ 2015 (Stay) FPA-PMLA-856/CHN/2015

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Dr. V.M. Ganesan … Appellant/Applicant Versus The Deputy Director Directorate of Enforcement, Chennai … Respondent

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Advocates/Authorized Representatives who appeared

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For the appellant	: Shri Anirudh Bakhru, Advocate Shri Ayush Puri, Advocate
For the respondent	: Shri Neeraj Atri, Advocate
CORAM SHRI G. C. MISHRA	: ACTING CHAIRMAN

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ORDER 08.10.2020

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The matter is taken up through Video Conferencing. The appearances of the learned counsels are as above.

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MP-PMLA-7736/CHN/2020 (U.A.)

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An urgent application has been filed on behalf of the appellant. Heard and considered the grounds mentioned therein, the same is allowed and the matter is taken up today. Accordingly, the urgent application is disposed of.

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FPA-PMLA-856/CHN/2015

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Page 1 of 8

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MP-PMLA-7737/CHN/2020 (Recall)

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The Respondent has filed a small note of reply through e-mail today. The copy of the said reply not served on the other side but the learned counsel for the appellant did not press for the copy of the reply and proceeded with the hearing of the application. The note of reply is taken on record.

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An application for modification/recall of the order dated 08.01.2020 and/or restoration of the stay against dispossession of the appellant from the property measuring 2625 Sq. Ft. land and building in Door No. 248, Karkana Street, Meyanur Village, Salem, Tamilnadu has been filed by the appellant, inter-alia , on the ground that order passed on 04.06.2015 has been modified by subsequent order dated 11.05.2017 in FPA-PMLA-858/CHN/2015 (LIC Housing Finance Ltd. V/s. the Joint Director, Directorate of Enforcement, Chennai), and order dated 26.10.2017 passed in the present appeal and the same order is complied with by the appellant as on date. It is further contended in the application that as per order dated 11.05.2017 passed by this Tribunal on the basis of undertaking dated 05.05.2017 the total months due as on that date were 29 and the corresponding amount due to the appellant therein was 18,75,500/- (Rupees Eighteen lakh seventy five thousand and five hundred only) and thereby undertook to pay the same within 30 months as 2 EMI dues for month i.e. Rs. 1,29,000/- (Rupees One lakh twenty nine thousand only) and thereby the conditions stated vide interim stay order dated 04.06.2016 stood modified and that status quo was ordered to be maintained in respect of possession of the property due to conflicting claim of possession by the opposite parties and that the Hon’ble High Court, Madras did not have on record the subsequent orders dated 11.05.2017 and 26.10.2017 passed by this Tribunal by

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FPA-PMLA-856/CHN/2015

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Page 2 of 8

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which the interim order dated 04.06.2015 stood modified because of which the above order of Hon’ble High Court, Madras came to be passed on 29.04.2019.

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During the course of hearing, it is submitted by the learned counsel for the appellant that by virtue of orders dated 11.05.2017 in FPA-PMLA-858/CHN/2015 (LIC Housing Finance Ltd. V/s. the Joint Director, Directorate of Enforcement, Chennai) and order dated 26.10.2017 passed in the present appeal, the order dated 04.06.2015 has been modified and the order of user and occupation charges does not exists. So, there is no necessity for paying the user and occupation charges as ordered on 04.06.2015. It is admitted by the appellant that the order dated 04.06.2015 to the extent of payment of user and occupation charges has not been complied with by the appellant, till the order dated 11.05.2017 in FPA-PMLA-858/CHN/2015 (LIC Housing Finance Ltd. (LICHFL) V/s. the Joint Director, Directorate of Enforcement, Chennai) and order dated 26.10.2017 passed in the present appeal or thereafter. It is also admitted by the learned counsel for the appellant that there was no order of Hon’ble High Court, Madras staying the operation of order dated 04.06.2015 passed by this Tribunal at any point of time and that the appellant did not bring it to the knowledge of Hon’ble High Court, Madras regarding the order passed on 11.05.2017 in FPA-PMLA-858/CHN/2015 and order dated 26.10.2017 in the present appeal. It is further submitted by him that the Hon’ble High Court, Madras reserved the order in appeal in 2015 and the order was delivered on 29.04.2019 and that affidavit dated 05.05.2017 was filed in the appeal of the LICHFL vide appeal no. FPA-PMLA-858/CHN/2015 which was considered by this Tribunal and passed order for payment of EMI. The said affidavit was also considered in the present appeal while

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FPA-PMLA-856/CHN/2015

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Page 3 of 8

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passing the order dated 26.10.2017 and that the possession of the property has been all along with the appellant. The appellant has been complying with the conditions on the stay order granted by this Tribunal vide order dated 11.05.2017.

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It is further submitted by the learned counsel for the appellant, in view of the above, the order passed on 08.01.2020 may be modified and/or restoration of the stay against dispossession of the appellant from the following property may be passed:-

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“The property measuring 2625 Sq. Ft. land and building in Door No. 248, Karkana Street, Meyanur Village, Salem, Tamilnadu”

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On the other hand, the learned counsel for the Respondent vehemently opposed the prayer of the appellant. In sum and substance, inter-alia , the contentions of the learned counsel for the Respondent is that, the order dated 04.06.2015, the Tribunal passed conditional order of stay and the condition was to pay use and occupation charges but till date the said order has not yet been complied. It is also submitted by him that the appellant challenged the order dated 04.06.2015 vide CMA No. 1451 of 2015 before the Hon’ble High Court, Madras. The appeal before the Hon’ble High Court, Madras was dismissed on 29.04.2019 upholding the order passed by this Tribunal on 04.06.2015 and that there is no modification of order dated 04.06.2015 and that the order passed on 08.01.2020 cannot be recalled and the application is liable to be dismissed.

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Heard both sides and perused the materials/orders available in the present appeal and FPA-PMLA-858/CHN/2015. The application for

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FPA-PMLA-856/CHN/2015

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Page 4 of 8

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modification/recalling order dated 08.01.2020 is rejected on the following facts and grounds:-

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The present appeal has been filed by the appellant against the order dated 12.02.2015 passed by the Adjudicating Authority in O.C. No. 355 of 2014. On 04.06.2015 the application seeking stay of dispossession was heard by Full Bench of this Tribunal presided by Justice Anil Kumar. After hearing the appellant a detailed conditional order was passed. The relevant portion of the order dated 04.06.2015 are as follows:-

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“In the circumstances dispossession of the appellant and his family members from the said premises comprising the property measuring 2625 Sq. Ft. land and building in Door No. 248, Karkana Street, Meyanur Village, Salem, Tamilnadu is stayed on the applicant depositing charges @ Rs. 25,000/- per month from February, 2015. The arrear of charges be deposited by 15^th July, 2015.

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List on 23^rd July, 2015.

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Future charges for use and occupation charges of the premises be also deposited by 15^th day of subsequent English Calendar month. The amounts deposited by the applicant be kept in a fixed deposit for such amount for such period as may be deemed appropriate by the respondent. The respondent shall keep fixed deposit receipt alive during the pendency of the appeal. The amounts so deposited along with interest shall be subject to outcome of the present appeal.

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The applicant shall not create any third party right encumbrance or transfer possession of property in any manner during the pendency of the appeal.”

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The aforesaid order dated 04.06.2015 has never been complied by

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the appellant.

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FPA-PMLA-856/CHN/2015

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Page 5 of 8

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The appellant challenged the aforesaid order dated 04.06.2015 before the Hon’ble High Court, Madras vide CMA No. 1451 of 2015 and MP 1 of 2015. The Division Bench of Hon’ble High Court, Madras vide order dated 29.04.2019 dismissed the appeal after due consideration of the pleadings of the parties. The operative portion of the order of Hon’ble

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High Court, Madras is as follows:-

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“31. Considering the facts and circumstances, there is no ground to interfere with the order. Hence, order made in MP-PMLA-1745/CHN/2015 in FPA-PMLA856/CHN/2015, dated 04.06.2015, is sustained. Civil Miscellaneous Appeal is dismissed. Arrears of amount, as ordered in MP-PMLA-1745/CHN/2015 in FPAPMLA-856/CHN/2015, dated 04.06.2015, to be deposited within two months, from the date of receipt of copy of this order. Appellant shall continue to deposit, as ordered.”

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The aforesaid order of Hon’ble High Court, Madras was not challenged, as such, became final and binding.

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The LIC Housing Finance Ltd. has filed another appeal arising out of same impugned order vide appeal no. FPA-PMLA-858/CHN/2015 in which the present appellant is Respondent no. 2. In the said appeal the appellant had filed an additional affidavit dated 05.05.2017. In the said affidavit the present appellant, in para no. 4, had undertaken the following:-

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“4. In fact I have been planning to make payments for quite some time. The total months of due as on date is 29 and the corresponding amount due to the appellant herein is Rs. 18,75,500/- I hereby undertake to pay the same within 30 months as 2 EMI dues per month i.e., Rs. 1,29,000/- P.M. and I will continue to pay the monthly installment Rs. 64,500/- thereafter without fail.”

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In the aforesaid affidavit there is no whisper of the appellant with regards to the order dated 04.06.2015 passed in the present appeal regarding status quo, stay or about user and occupation charges.

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FPA-PMLA-856/CHN/2015

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Page 6 of 8

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The learned counsel for the appellant, during the course of hearing, submitted that this tribunal, in the present appeal, has considered the order dated 11.05.2017 passed in the LIC Housing Finance Ltd. appeal on 26.10.2017 and has passed fresh status quo order and thereby modified the order dated 04.06.2015. This contention of the appellant is without basis. Nowhere in the order dated 11.05.2017 passed in the LIC Housing Finance Ltd. appeal nor in the order dated 26.10.2017 passed in the present appeal there is whisper or mention of modification of the order dated 04.06.2015. There is also no order in the present appeal that the user and occupation charges ordered on 04.06.2015 is waived or modified or recalled vide order dated 26.10.2017 or on any date thereafter. The interpretation of the appellant that there is an implied order of modification of the order dated 04.06.2015 has no substance hence not acceptable.

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Besides above, the conduct of the appellant is not appreciated. The full Bench of this Tribunal vide order dated 04.06.2015 directed the appellant to pay the user and occupation charges to the tune of Rs. 25,000/- (Rupees Twenty five thousand only) per month. This order though challenged before the Hon’ble High Court, Madras, the same was not stayed but on the other hand the aforesaid order dated 04.06.2015 is confirmed. The appellant did not care to comply the aforesaid order dated 04.06.2015 till today even after the order of Hon’ble High Court, Madras.

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Since the order passed by Hon’ble High Court, Madras is in operation and since the appellant has failed to comply the order dated 04.06.2015 and further to that there is no order of this Tribunal modifying the order dated 04.06.2015, I do not find any merit in the

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FPA-PMLA-856/CHN/2015

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Page 7 of 8

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present application. Therefore, the application for modification/recall of order dated 08.01.2020 cannot be interfered, hence rejected. Accordingly the application is disposed of.

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The learned counsel for the appellant seeks two weeks time for not taking any action on the eviction notice. The same is considered. The eviction notice dated 24.02.2020 is yet to be acted upon by the Respondent on the ground mentioned in the reply note of the Respondent. In the given facts and circumstance of the case the Respondent is directed not to take any coercive action in view of the notice dated 24.02.2020 till 22.10.2020.

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The appeal is already fixed on 26^th November, 2020 alongwith other appeal. List on the same date.

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(G.C. Mishra) Acting Chairman

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New Delhi, 08^th October, 2020

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‘D’

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FPA-PMLA-856/CHN/2015

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FPA-PMLA-856/CHN/2015 of Dr. V.M. Ganesan v/s The Deputy Director Directorate of Enforcement, Chennai

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FPA-PMLA-856/CHN/2015 of Dr. V.M. Ganesan v/s The Deputy Director Directorate of Enforcement, Chennai

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