Allowed

FPA-PMLA-2542/PTN/2018 of Dr. Pradeep Kumar v. The Deputy Director Directorate of Enforcement, Patna

ATFP21 Nov 2024FPA-PMLA-2542/PTN/2018

Case brief

AI extract

What is this about?

The Tribunal disposed of three appeals challenging the confirmation of provisional attachment orders under the PMLA. Relying on Vijay Madanlal Choudhary, the court ordered restoration of possession for specific immovable properties to appellants, subject to the trial outcome, while upholding the attachment and allowing disposal of the appeal to prevent multiplicity of litigation.

What did the court decide?

Restoration of possession of three immovable properties (Ranchi, Udaipur, Bangalore) to appellants pending trial under PMLA, subject to non-alienation.

FPA-PMLA-2542/PTN/2018 of Dr. Pradeep Kumar Vs. The Deputy… — Banking and Recovery | ATFP (2024)

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APPELLATE TRIBUNAL UNDER SAFEMA AT NEW DELHI

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(1) MP-PMLA-256/PTN/2024 (Misc.) MP-PMLA-9753/PTN/2022 (Misc.) MP-PMLA-5069/PTN/2018 (Misc.) 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-9755/PTN/2022 (Misc.) 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

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Advocates/Authorized Representatives who appeared

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For the appellant	: Mr. Anshuman Singh, Advocate Mr. Vijay Kumar Pandey, Advocate Mr. Vinay Prakash, Advocate Mr. Udayan Sinha, Advocate
For the respondent	: Ms. Nattasha Garg, Advocate
CORAM
SHRI G. C. MISHRA	: MEMBER
SHRI BALESH KUMAR	: MEMBER

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FINAL ORDER 21.11.2024

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This Order disposes of the Appeals Nos. FPA-PMLA-25422544/PTN/2018 filed by Dr. Pradeep Kumar, Sh. Rajendra Kumar and Nand Lal HUF respectively. The appeals were filed challenging the Order (impugned order) dated 03.08.2018 in Original Complaint (OC) No. 901/2018 in ECIR No. 12&13/PAT/2012 dated 18.05.2012. The

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FPA-PMLA-2542-2544/PTN/2018

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impugned order has confirmed the Provisional Attachment Order (PAO) No. 04/2018 dated 20.02.2018.

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2. The impugned order confirmed the PAO No. 04/2018 dated 20.02.2018 which had attached set of five immovable properties totally valued Rs. 96,60,616/- and movable properties totally valued Rs. 79,77,911/-. Thus, the attachment of total value of Rs. 1,76,38,527/- of the immovable and movable properties was confirmed by the Ld. Adjudicating Authority in the impugned order dated 03.08.2018. The movable properties comprise of balances in the accounts of Nand Lal HUF, of Dr. Pradeep Kumar and his children and of Sh. Rajendra Kumar. The immovable properties comprise of five set of properties as listed in the impugned order. Two of these properties are in the name of Dr. Pradeep Kumar at 205, Jascon Plaza, Circular Road, Ranchi and Plot No. 20, in District Udaipur with constructions on ground and first floor. Other two properties are in the name of Sh. Rajendra Kumar at Bangalore comprising of land and at Plot No. 19 in District Udaipur with constructions on ground and first floor. The fifth property is in the name of Sh. Shyamal Chakravarty and M/s Nand Lal HUF comprising of Flat in Sugam Hemant Apartment in Kolkata along with Car Parking Space.

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3. Ld. Counsel for the Appellants during the course of final hearing prayed to dispose of the appeals in terms of the Order dated 17.10.2024 passed by this Tribunal in Appeal Nos. FPA-PMLA-4632-4634/KOL/2022 in the matters of Wasim Rahaman, Md. Imran and Saba Khan respectively. The relevant paragraphs of the Order (Supra) are cited below:-

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“4. We have heard the counsel for the parties. The appeal has been preferred to challenge the provisional attachment order and its confirmation by the impugned order dated 19.04.2022. The counsel for the appellant, on instructions, submits that his client is not inclined to press the appeal for challenge to the impugned orders if

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FPA-PMLA-2542-2544/PTN/2018

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the possession of the property is not taken. A reference of the interim order passed by the Tribunal has been given and accordingly prayer is made that subject to the outcome of the trial in pursuance to ECIR, let the attached property be dealt with as per Section 8(5) to 8(8) of the Act of 2002.

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5. In view of the judgment of the Apex Court in the case of Vijay Madanlal Choudhary and Others v. Union of India & Ors . reported in (2022) SCC Online 929, the possession can be taken under an exceptional case. Accordingly, this appeal is disposed of without causing interference in the provisional attachment order so as the order of its confirmation. The parties would, however, maintain status-quo in regard to the possession as was obtaining on the date when the interim order was passed by the Tribunal. The appellant would otherwise not alienate or transfer the property till conclusion of the trial. Subject to the outcome of the trial and Section 8(5) to 8(8) of the Act of 2002, this order would be governed.”

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He further argued that after confirmation of the attachment the Respondent had taken possession of the property bearing Plot No. 20 in the District of Udaipur in the name of Dr. Pradeep Kumar by affixing of board thereupon. He stated that even for the two properties of Sh. Rajendra Kumar the Respondent had taken possession by affixing a board at Plot No. 19 in District Udaipur and also at Plot of Land in Bangalore.

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4. Ld. Counsel for the Appellants contended that in terms of the judgment of the Hon’ble Supreme Court in Vijay Madanlal Choudhary & Ors. vs. Union of India & Ors. [(2022) SCC OnLine 929] wherein it has been categorically held that the possession of the attached property can be taken over only under exceptional case, the possession of the properties may be restored to the Appellants. He prayed to dispose of the Appeals without causing interference in the Order of Confirmation as well as in the Provisional Attachment Order subject to the outcome of the trial before the Special Court. He further prayed for restoration of possession of the properties by the Respondent to the Appellants on the FPA-PMLA-2542-2544/PTN/2018 Page 3 of 6

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grounds that the properties are not being well maintained by the Respondent. He undertook to abide the conditions inherent in the impugned order as well as any condition imposed by the Tribunal.

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5. Ld. Counsel for the Respondent argued that the reliance of the Appellants on the Judgment (Supra) of the Hon’ble Supreme Court for its retrospective applicability is contrary to settled law. She argued that the Apex Court did not merely clarify and interpret the provisions of The Prevention of Money Laundering Act, 2002 (PMLA) but watered down the rigors of the Act, essentially laying down a new procedure under Section 8 (4) of the Act. She further stated that the Judgment relied upon by the Appellant in Golakh Nath vs. State of Punjab [AIR 1967 SC 1643] is misplaced. She contended that the finding made by the Hon’ble Supreme Court in Vijay Madanlal (Supra) in paragraph 304 and 305 cannot be said to have a retrospective effect specially when such findings alter the statutory provisions providing for a fresh procedure to be followed and not a mere clarification/interpretation of the provisions.

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6. We have considered the rival submissions made by the two parties. We note that this Tribunal passed final order dated 06.08.2024 in Appeal No. FPA-PMLA-2547/PTN/2018 in the matter of Shyamal Chakravarty vs. The Deputy Director, Directorate of Enforcement, Patna. The Appeal dealt with the immovable property viz Flat in Sugam Hemant Apartment in Kolkata along with the Car Parking Space, in the names of Shyamal Chakravarty and M/s Nand Lal (HUF). The aforementioned order dated 06.08.2024 dismissed the Appeal filed by Sh. Shyamal Chakravarty as being devoid of any merits and upheld the impugned order dated 03.08.2018 passed by the Ld. Adjudicating Authority in so far as the aforementioned immovable property viz Flat in Sugam Hemant Apartment in Kolkata along with the Car Parking Space is concerned. It is therefore, clear that the impugned order in so far as the immovable

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property for which the Appellant M/s Nand Lal (HUF) has filed the Appeal No. FPA-PMLA-2544/PTN/2018 has already been upheld in Appeal No. FPA-PMLA-2547/PTN/2018 filed by Sh. Shyamal Chakravarty. The Appeal No. FPA-PMLA-2544/PTN/2018 is also against the impugned order confirming the provisional attachment of the movable properties in the name of M/s Nand Lal (HUF). Therefore, the Appeal No. FPA-PMLA-2544/PTN/2018 against the impugned order confirming the attachment of the immovable property viz Flat in Sugam Hemant Apartment in Kolkata along with the Car Parking Space in so far as the right of the Appellant M/s Nand Lal (HUF) is concerned and against that part of the impugned order confirming the attachment of movable properties in the name of M/s Nand Lal (HUF) is concerned is disposed of without causing interference in the PAO No. 04/2018 dated 20.02.2018 subject to the trial under the Prevention of Money Laundering Act, 2002 (PMLA). The Appellant M/s Nand Lal (HUF) shall ensure that the properties are neither alienated nor transferred and not dealt with in any manner till conclusion of the trial under PMLA.

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7. We find that the property at 205 Jascon Plaza, Ranchi in the name of the Appellant Dr. Pradeep Kumar is already in possession of the Appellant as is obvious from the Order dated 30.08.2022 passed by the Hon’ble High Court of Jharkhand. The Appellant has also not made prayer for the restoration of the said property in Ranchi. In relation to the other immovable properties at Plot No. 20 in District Udaipur in the name of the Appellant Dr. Pradeep Kumar and at Plot No. 19 in District Udaipur as well as Plot of Land in Bangalore in the name of the Appellant Sh. Rajendra Kumar, Ld. Counsel for the Appellants has prayed for restoration of possession not only in terms of the Judgment (Supra) in Vijay Madanlal Choudhary but also for the reason that the properties can be better maintained. He has also clarified that the Appellants do not

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oppose the attachment but will also abide by the conditions imposed by the Tribunal till the matter is disposed of in the trial before the Special Court. The Respondent has not opposed the arrangement prayed for by the Appellants except for pleading that the Judgment (Supra) in Vijay Madanlal Choudhary does not have retrospective applicability. We therefore in the interest of justice order the restoration of the possession of the aforementioned three immovable properties to the two Appellants Dr. Pradeep Kumar and Sh. Rajendra Kumar in whose name these properties are.

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8. It is also clear that the Appellants have not objected to abide by the impugned order in so far as the confirmation of the movable and immovable properties is concerned till the completion of the trial before the Special Court.

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9. In view of the aforementioned discussions these three Appeals are disposed of without causing interference in the Provisional Attachment Order so as in the impugned order of confirmation. The Appellants are directed to ensure that the properties are neither alienated nor transferred till conclusion of the trial. The Appellants are further directed to ensure that the properties are not dealt with in any manner till conclusion of the trial.

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10. The three Appeals and the pending Applications are accordingly disposed of.

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(Balesh Kumar) (G. C. Mishra) Member Member

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New Delhi 21^st November, 2024

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‘AK’

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FPA-PMLA-2542-2544/PTN/2018

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