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2018 (9) TMI 191 - AT - Money LaunderingPrevention of Money Laundering - provisional attachment - no notice under section 8(1) or 8(2) has been issued - right of the bank as involved already initiated action under the SARFAESI Act - Held that:- There is no denial that the Respondent No. 1 and the Adjudicating Authority failed to issue notice to the Appellant or to afford a hearing to her, during the adjudication proceedings. Thus, the Respondent No. 1 and the Adjudicating Authority have failed to comply with the mandatory statutory requirement of the Proviso to Section 8(2), PMLA. It is not understood why the requisite notice was not issued by the respondent no. 1 and Adjudicating Authority. Despite being Appellant’s claim, Respondent No. 1 failed to fulfill its statutory duty. In the present case, admittedly, no notice under section 8(1) or 8(2) has been issued. No opportunity was given to the appellant bank who was also not made party in the complaint under section 5(5) of the Act despite of having the knowledge by the respondent as well as the adjudicating authority. The provisional attachment order would show that the respondent was fully aware that the said property is mortgaged with the appellant bank. It is immaterial if the borrower bank in the SARFAESI Act proceeding has informed that the bank was aware about the attachment order in 2010. As a matter of fact, as per the mandatory provision, it was the duty by the respondent to inform the joint owner or the complainant about the proceeding initiated against the borrower so that the claimant or the joint owner can take his stand and clarify the position before the authority. This thing has not happened in the present case. The substantial right of the bank is involved as the bank has already initiated action under the SARFAESI Act and order under section 13(4) has been passed, it has become necessary to hear the appeal on merit. Such delay, in fact, has happened due to non-compliance of the provisions by respondent no. 1. The same cannot be attributed to the appellant.
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