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2018 (11) TMI 1398 - AT - Money LaunderingOffence under PMLA - provisional attachment order - whether the provisional attachment order and confirmation thereof have been passed as per well settled law or not? - Held that:- There is no nexus whatsoever between the alleged crime and the bank is merely the secured creditor and was not aware that the borrower would avoid returning the loan-amount. Prima facie, no case of moneylaundering is made out against bank. The bank has the priority rights on assets of the secured creditors to recover the loan amount/debts by sale of assets over which security interest is created. The respondent no. 1 has merely brought the allegations made against the appellant which are to be decided by the Special Court. As far as issue of mortgage of property is concerned, the same has not been dealt by the respondent in accordance with the law. Therefore, I reject all the arguments alleged by the respondent no. 1 or its counsel. The property even could not have been attached in lieu of value thereof in view of the facts and circumstances of the case. As far as the allegation of the appellant on mortgage is concerned, the same is to be decided by the Special Court and this Tribunal does not wish to express any opinion about the outcome. As regards the tri-partite agreement, this Tribunal does not want to express any opinion with regard to the said agreement. Once the property is released from the attachment, it is for the Bank to decide the mode of recovery of the amount due. With regard to the attachment of the property is concerned, the attachment is not sustainable as the bank is mortgagee of the property and is entitled to recover the amount as per law. The entire impugned order passed by the adjudicating authority and the provisional attachment order is contrary to law and null and void. Both authorities have not followed the many judgements of Supreme Court and that various High Courts. The impugned order is wholly non-application of mind and noncompliance of mandatory provision and mechanical order has been passed. As per settled law, it is of the view that the respondent no. 1 and the Adjudicating Authority have failed to fulfil to comply the mandatory provisions. The impugned order even could be set-aside on this ground itself, however, during the course of hearing, counsel for the respondent no. 1 has correctly realized and agreed if the Bank of Baroda be impleaded as respondent no. 2 who was the main stakeholder of attached property in question - the impugned order is set-aside with regard to the property of the subject matter of the present appeal. The respondent no. 1 is enable to recover the amount as per law. The appellant cannot dispose of the property as the same is already mortgaged with the Bank.
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