TMI Blog2017 (8) TMI 861X X X X Extracts X X X X X X X X Extracts X X X X ..... pass the following order: I. Order of confirmation dated 31.03.2014 in OC No. 228/2013 in so far as it pertains to house No. D-5/5 DLF Phase-I, Gurgaon, Haryana is set aside and the matter is remanded back to the Adjudicating Authority for deciding the matter afresh after giving an opportunity of being heard to the applicant in terms of proviso to section 8(2) and also the other defendants in OC No. 228/2013. II. The Adjudicating Authority shall fix a date of hearing not beyond 45 days from the date of receipt of this order. The applicant and the defendants in OC No. 228/2013 shall appear before the Adjudicating Authority on the date fixed by the Adjudicating Authority for hearing. The Adjudicating Authority shall pass its order in remand proceedings within 45 days of the date of hearing. III. The applicant and the defendants in OC No. 228/2013 shall not sell, dispose of, alienate or create any third party interest in the property viz. D-5/5, DLF Phase-I, Gurgaon, Haryana during the pendency of remand proceedings before the Adjudicating Authority and the provisional attachment order No. 03/2013 dated 28.10.2013 in ECIR/06/JLZO/2012 shall remain alive. The applicant shall a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icant was to sell the Samrala land for a total sale consideration of ₹ 3 crores; d) that since applicant and Ranjeet Singh were good friend and having trust in each other, in the month of September, 2011 the applicant paid token money against the DLF house of ₹ 5.25 lakh and the possession of the said house was also handed over to the applicant and his family; e) that the applicant in order to arrange funds for the purchase of the house also applied for grant of loan to Bank of India on 28.04.2012 and requisite formalities were completed including receiving the valuation report and also legal scrutiny report done by Advocate Alok Rattan dated 03.05.2012; f) that the applicant and Ranjit Singh decided to reduce the oral understanding into written document and accordingly an agreement to sell was executed between Smt. Rajwant Virk W/o Sh. Ranjeet Singh Kandola R/o C-6/3, Vasant Vihar, New Delhi (since the DLF house was in the name of Smt. Rajwant Virk) and the applicant Sh. Amanpreet Singh Gandhi and his brother Sh. Mandeep Singh Gandhi both sons of late Sh. Joginder Singh Gandhi R/o I-99, 2nd Floor, Kirti Nagar, New Delhi, that at the time of singing of this agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy of present appeal FPA- PMLA/582/JLZO/2014 this Tribunal passed a judgment dated 05/09/2014, in the case of Central Bank of India in FPA-PMLA- 285/CHN/2011, in which, this Tribunal held that in case the person is neither made defendant by the respondent, nor Adjudicating Authority issue notice during u/s 8(1) of Prevention of Money Laundering Act, 2002 during the hearing of complaint u/s 5(5) of the PMLA 2002, though the said person had legal and valid right to be claim in the property or any asset apart from the defendants in the complaint u/s 5(5) of the PMLA 2002, in that case, the aggrieved person should first approach the Adjudicating Authority u/s 8(2) of the PMLA 2002. 4. In view of the said pronouncement in the case of Central Bank of India the applicant was allowed by this Tribunal to withdraw the appeal No. FPA-PMLA-582/JLZO/2014 vide the order dated 12.12.2014, with liberty to invoke his remedy as contemplated under proviso to Section 8(2) of the PMLA. The order dt. 12.12.2014 is reproduced hereunder:- The learned counsel for the applicant on instruction seeks to withdraw the appeal. He states that the applicant shall invoke his remedy as contemplated unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s passed u/s 8(3) of the Act and the authority become functus officio; E. that as per section 8(2), it was obligatory upon the Adjudicating Authority to issue notice to the person if the property is claimed by a person other than a person to whom the notice has been issued; that such person also required to be given an opportunity of hearing to prove that the property in his hand is not involved in money laundering; F. that the order of this Tribunal making mandatory to the person who has not been heard by the Adjudicating Authority though has a legitimate claim in the property to first approach by invoking section 8(2) of the Act by way of filing application before Adjudicating Authority has resulted into extending power to the Adjudicating Authority which is not provided under the Act; G. that if order of this Tribunal in Central Bank is followed it will result into empowering Adjudicating Authority to review its own order which is otherwise completely prohibited under the scheme of the PMLA 2002 as no such power is provided under the Act; H. that this Tribunal being an Appellate Tribunal empowered to hearing the appeal u/s 26 of the Act is to pass such order thereon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he District Forums and the State Commissions have not been given any power to set aside ex parte orders and the power of review and the powers which have not been expressly given by the statute cannot be exercised , that the order passed in Central Bank, is per incurium, that an order/ judgment is per incurium, when the said order ignores a binding precedent/statute/rule, that the order passed per in curium is not binding upon the lower court/authority, that it has been held in 2009 SCC OnLine Mad 1077 : (2009) 3 CTC 719 : (2009) 6 Mad LJ 733 in PSA Sical Terminals Limited V. Union of India. 28. On this aspect, it is to be stated that a decision shall be construed to be sub-silentio and per incurium, if, in that case, a statute or rule having statutory effect was not brought to the attention of the Court, which means some applicable rule of law was missed by the Court and the Court would have decided the case differently if the material had been argued before the Court. The significance of a judgment having been decided sub- silentio and per incurium is that it need not be followed as a precedent by a Lower Court. L. that in a case where the Tribunal refused to follow a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gard the statutory provision and is bound to follow a decision of its own given when that provision was not present to its mind. Cases of this description are examples in decisions given per incuriam. The Supreme Court in Jeisri v. Rajdewan has also quoted with approval the observations in Halsbury's Laws of England, Third Edition, Vol. 22, paragraph 1687, pages 799-800, which are as follows: The Court is not bound to follow a decision of its own if given per incuriam. A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of a co-ordinate jurisdiction, which covered the case before it, or when it has acted in ignorance of a decision of the House of Lords. In the former case it must decide which decision to follow, and in the latter, it is bound by the decision of the House of Lords . (Emphasis supplied). N. that unlike courts, quasi judicial bodies are not bound by their own decisions, it has been held in Union of India V. Kamlakshi Finance Corporation Ltd., AIR 1992 SC 711, that the doctrine of stare decisis does not apply to a quasi judicial body that in case there is no such binding precedent, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Delhi in case of India Tourisms Development Cooperation Ltd. Vs Delhi Administrative and others 207 (2014) Delhi law times 471 (DB) has held in Para 20 of the judgment that it is settled legal proposition that unless the statute/rules so permit the review application is not maintainable in case of judicial/quasi order, that in absence of any provision of the Act granting an express power of review it is manifest that the review could not be made and if the order is reviewed it is Ultra Virus illegal and without jurisdiction, that the power to review is not a inherent power, it must be conferred either expressly/specifically, and in the absence of any statutory provision providing for review entertaining an application for review or under the grab of clarification/modification/ correction is not permissible. 6. The Learned Counsel for the applicant has prayed for setting aside the order dated 12.12.2014 and the ex-parte order dated 31/3/2014 passed in O.C. No. 228/2013 of the Adjudicating Authority confirming the provisional attachment order no. 3/2013 dated 28/10/2013 and remanding back the case for fresh adjudication before the Adjudicating Authority. 7. The learned cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any of the properties referred to in the notice issued under sub-section (1) are involved in money-laundering: Provided that if the property is claimed by a person, other than a person to whom the notice has been issued, such person shall also be given an opportunity of being heard to prove that the property is not involved in money-laundering. 2) Where the Adjudicating Authority decides under sub- section (2) that any property is involved in money-laundering, he shall, by an order in writing, confirm the attachment of the property made under sub-section (1) of section 5 or retention of property or [record seized or frozen under section 17 or section 18 and record a finding to that effect, whereupon such attachment or retention or freezing of the seized or frozen property] or record shall- (a) continue during the pendency of the proceedings relating to any [offence under this Act before a court or under the corresponding law of any other country, before the competent court of criminal jurisdiction outside India, as the case may be; and] [(b) become final after an order of confiscation is passed under sub-section (5) or sub-section (7) of section 8 or section 58B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conducted after an order under Section 8(3) has already been passed such hearing may result in order which may be at variance with the previous orders under Section 8(3). 14. Such a scenario would definitely be in contradiction with the provisions of the PMLA as no such powers of review have been vested in the Adjudicating Authority. The provisions of Section 8, (1), (2) 3 have to be read harmoniously and a holistic view has to be taken to interpret these provisions correctly. While Section 8(1) speaks of issue of show cause notice to the persons alleged to have committed an offence under Section (3) and to joint holders of the property and on whose behalf the property is held by some other person, Section 8(2) read with its proviso speaks of Principles of Natural Justice to be followed in the form of considering the reply to the show cause notice, hearing the aggrieved persons and the complainant and also hearing any person other than a person to whom the notice has been issued, who claims a right in the property and Section 3 provides for passing an order in writing regarding confirmation of attachment. This scheme of law has no scope for segregating the proviso to Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eviewing of its own orders would be against the provisions of PMLA and not sustainable. As regards the powers of review of its orders with the Appellate Tribunal, section 35 of the PMLA specifically provides for the same. The relevant portions of Section 35 are reproduce below: 35(1) The Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act, the Appellate Tribunal shall have powers to regulate its own procedure. (2) The Appellate Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1905 (5 of 1908) while trying a suit, in respect of the following matters, namely:- a) Summoning and enforcing the attendance of any person and examining him on oath; b) Requiring the discovery and production of documents; c) Receiving evidence on affidavits; d) Subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 8(2) of Act are clear and unambiguous and are reasonably susceptible to one meaning only. If that be so, it cannot be construed to mean that the person who has not been given notice under Section 8(1) of the Act and whose property is sought to be attached or has been attached and attachment order has been confirmed was entitled for hearing only if he had approached the Adjudicating Authority before confirmation of the provisional attachment order. There is nothing in the Act which will demonstrate that the Adjudicating Authority will become functus officio after confirmation of the provisional attachment order within the time stipulated under section 5 (1) (b) of the Act. Though proviso to section 8 (2) contemplates that the hearing shall be given to the person to whom the notice has not been given under Section 8(1). No order of the Adjudicating Authority has been brought to the notice of this Tribunal where it has held that it would not hear a person whom the notice was not given under Section 8 (1) of the Act, after confirmation of the provisional attachment order. No precedent of any Hon ble High Courts or Hon ble Supreme Court has also been relied on by any of the parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce signed, shall not afterwards be altered or added to save as provided by Section 152 or on review. Thus, where a judgment is reserved, mere dictation does not amount to pronouncement, but where the judgment is dictated in open court, that itself amounts to pronouncement. But even after such pronouncement by open court dictation, the Judge can make corrections before signing and dating the judgment. Therefore, a Judge becomes functus officio when he pronounces, signs and dates the judgment (subject to Section 152 and power of review). The position is different with reference to quasi-judicial authorities. While some quasi-judicial tribunals fix a day for pronouncement and pronounce their orders on the day fixed, many quasi-judicial authorities do not pronounce their orders. Some publish or notify their orders. Some prepare and sign the orders and communicate the same to the party concerned. A quasi-judicial authority will become functus officio only when its order is pronounced, or published/notified or communicated (put in the course of transmission) to the party concerned. When an order is made in an office noting in a file but is not pronounced, published or communicated, noth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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