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2020 (12) TMI 816 - ATPMLAMoney Laundering - continuation of attachment order passed under PMLA Act - section 32A(2) of the IBC - HELD THAT:- Since in the present case there was no resolution plan covering the assets of the Corporate Debtor as attached by the ED vide Provisional Attachment Order ED cannot be precluded from proceeding against the assets of the Corporate Debtor in accordance with law, merely because the CIRP has been initiated against the accused/Corporate Debtor. That, it is well settled law that the Legislature is presumed to know all existing laws as well as the needs of the society, while enacting a legislation. Therefore, it will be presumed that after considering all possible scenarios when the Ordinance has dealt with only one situation where the powers of ED under PMLA are being curtailed then it will be presumed in law that the powers of ED under PMLA qua all other situations remain untouched and are to be governed by the extant law under PMLA. Therefore, prior to approval of a resolution plan, the ED’s power to attach property under Section 5 cannot sought to be trammelled upon merely because CIRP process is underway or because moratorium has been imposed. That, once the amended IBC has expressly laid down that only after the approval of a resolution plan under section 31 of the IBC, would the ED be precluded from proceeding against the assets of the Corporate Debtor for the commission of offences prior to the CIRP, it cannot be argued that merely because a moratorium period under section 14 of the IBC is active, the ED is precluded from proceeding against the assets of the Corporate Debtor. If the Applicant’s arguments are accepted, it would lead to whittling down the provision of section 32A as well as reading into section 32A which is not there. Whether, after the appointment of the Liquidator, without hearing him any order could be passed in the appeal/application? - HELD THAT:- On being asked by this Tribunal as to whether the Liquidator appointed by the NCLT is a necessary party, it is replied by the learned counsel for the appellant that no relief has been sought against the Liquidator and that the present appellant/applicant is not going to sale the attached properties mortgaged with it, if released from attachment and that the present application has been filed only to decide the question of law raised in the application i.e. applicability of amended provisions as incorporated as Section 32A(2) in the I&BC by the Insolvency and Bankruptcy Code (Amendment) Act, 2020 dated 13.03.2020 enforced with effect from 28.12.2019. The Liquidator has no role to play in deciding the present application and that liquidator is not a necessary party. Admittedly, the Corporate Debtor is not made a party to the proceedings when the properties in the present proceedings are involved, so the Liquidator who has been appointed by the NCLT is necessary to be heard before passing any order. Not impleading the Liquidator as a party to the present proceeding to decide the present question of law is detrimental to the proper adjudication to the present application particulars when the question of law which has bearing on disposal of the appeal then all the necessary parties to be heard. List the appeal on 26th February, 2021.
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