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2021 (7) TMI 1065 - HC - Money LaunderingProvisional attachment of properties - inherited property - property acquired prior to commission of scheduled offence - HELD THAT:- The properties on which the petitioner claims ownership have been attached and the petitioner has been served with a notice dated 14.07.2021 (Annexure P-1 Colly), pursuant to the order of provisional attachment confirmed by the adjudicating authority on 23.06.2021. Prima facie, the documents which are placed on record would show that the nucleus of the property is from inheritance and gift through the family members prior to availing the loan. The non payment and divertion of fund of loan is now subject issue of scheduled offence. The judgment relied on by the petitioner of SEEMA GARG, SAIYRAH @ DEEPIKA GARG, SANGEETA GARG VERSUS THE DEPUTY DIRECTOR, DIRECTORATE OF ENFORCEMENT (PREVENTION OF MONEY LAUNDERING ACT) , GOVT. OF INDIA [2020 (3) TMI 460 - PUNJAB & HARYANA HIGH COURT] wherein also it has been laid down that the property acquired prior to commission of scheduled offence cannot be attached unless property obtained or acquired from scheduled offence is held or taken outside the country. Therefore, prima facie, if the properties were held by the petitioner prior to the scheduled offence that cannot be subject of attachment by the authority. The another aspect is that Section 26 (3) of the Act, 2002 gives a right to file an appeal and 45 days time has been provided. The facts would suggest that the orders by the adjudicating authority were passed on 23.06.2021 which was received by the petitioner on 05.07.2021, therefore, the limitation to file the appeal still exists up to 19.08.2021 - if the limitation still exists but before that any enforcement order is executed to takeover the property, it would amount to defeat the right which is guaranteed under Section 26 (3) of the Act, 2002. Further as has been stated that the appellate tribunal is non-functional as on date, as such the petitioner cannot be left in lurch when the right has been given by the statute which requires to be appreciated. It is directed that pursuant to the order dated 23.06.2021 notice dated 14.07.2021 in respect of the petitioner for taking over the possession of the aforesaid two properties shall not be given effect to till the next date of hearing - List it after four weeks.
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