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TMI Blog2018 (4) TMI 600X X X X Extracts X X X X X X X X Extracts X X X X ..... isional attachment order, the respondent was aware that the appellant was claiming owner of the property by virtue of sale deed party who had purchased the property from third party but despite having knowledge no notice was issued by the Adjudicating Authority. No opportunity was given to the appellant to file reply, who was also not heard at the same of confirmation despite mandatory provisions. The prescribed period of 180 days under Section 5 of the Act has already expired. There is no provision in the act of review of the impugned order or the order of provisional attachment order. There is no provision in the PML Act, 2002 for extension of time after the expiry of 180 days. The present dispute in the appeal is only pertaining to above referred property. 3. It is true that if the ED and Adjudicating Authority were having no knowledge about the claim of owner of the property in question which was purchased by the appellant then no notice was required and the situation would have been different. But in the present case both authorities were fully aware all this facts and supporting documents executed in favour of the appellant but despite that no notice was given, the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder was passed against the appellant in relation to the property in question, therefore, the appeal has been filed, otherwise the respondent would take incase the possession under Section 8(4) of the Act is taken by the respondent, the appellant would be left with no remedy. The interim order in favour of appellant has already been passed in favour of the appellant. In the present appeal both parties do not dispute that with regard to other attached property. The operation of order would continue against the accuse party. 6. Facts of the Case The facts of the matter is that the Central Bureau of Investigation, New Delhi took up the investigation and registered 8 FIRs bearing Nos. RC BDI 2009 E 0001, 0002, 0005, 0006, 0008, 0009, 0010, and 0013, for commission of offences punishable under Section 120-B, r/w 420, 460 & 471 of IPC, 1860 and Section 13 of PC Act 1988 for which charge sheets have been filed under Section under Section 173 of Cr. PC 1988 against H.B. Chaturvedi, Chairman-cum-Managing Director, Amit Chaturvedi, Joint Managing Director, Sanjay Chaturvedi, Director, Sumit Chaturvedi, Director and Parvin Juneja, Director (Corporate Finance) of M/s. Shamken Spinners Ltd., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . One Gold watch of Rolex make 22,05,000 31.07.2014 c. Innova-Reg. No. DL3CBX0843 5,54,500 05.07.2016 d. Scorpio-Reg. No. DL3CAS4213 7,07,400 -do- e. Elantra - Reg. No. DL3CBP8137 8,42,550 -do- 3. Mrs. Maharani Chaturvedi w/o Shri H.B. Chaturvedi, Mrs. Neelima Chaturved w/o Shri Amit Chaturvedi 98, Eastern Avenue Sainik Farms, New Delhi 110062 43,96,12,800 4. Sh. Sohit Chaturvedi s/o Shri Sanjay Chaturvedi, Shri Eshan Chaturvedi s/o Shri Amit Chaturvedi 97-D, Eastern Avenue Sainik Farms, New Delhi 110062 5. Shamken Cotsyn Limited (SCL) a. A/c No. 20342000000359 HDFC Bank, B 6/3, Safdarjung Enclave, New Delhi-59 8,23,893.35 02.04.2016 b. A/c No. 05032320000593 9,715.03 05.05.2016 6. Shamken Multifab Ltd. Shamken House, B-1/A-20, Mohan Cooperative Industrial Estate, Mathura Road, New Delhi-110044 5,66,00,000 01.09.2011 7. Shamken Multifab Ltd. (SML) a. A/c No. 0417984224 Citi Bank, N.A., Global Consumer Bank, Jeevan Bharti Building, 124, Connaught Circus, New Delhi-110001 64,894.38 07.04.2016 b. A/c No. 0422292222 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 502 of UCO Bank, Ferozeshah Road, New Delhi 74,095 06.05.2016 H A/c No. 18250310026519 of UCO Bank, Ferozeshah Road, New Delhi 74,094 06.05.2016 I A/c No. 18250310026526 of UCO Bank, Ferozeshah Road, New Delhi 74,093 06.05.2016 J A/c No. 18250310026533 of UCO Bank, Ferozeshah Road, New Delhi 74,095 06.05.2016 K A/c No. 18250310026540 of UCO Bank, Ferozeshah Road, New Delhi 74,092 06.05.2016 L A/c No. 18250310026557 of UCO Bank, Ferozeshah Road, New Delhi 74,095 06.05.2016 M A/c No. 18250310026564 of UCO Bank, Ferozeshah Road, New Delhi 74,099 06.05.2016 N A/c No. 18250310026571 of UCO Bank, Ferozeshah Road, New Delhi 74,091 06.05.2016 O A/c No. 18250310026588 of UCO Bank, Ferozeshah Road, New Delhi 74,093 06.05.2016 P A/c No. 18250310033104 of UCO Bank, Ferozeshah Road, New Delhi 1,33,559 06.05.2016 Q A/c No. 18250310042656 of UCO Bank, Ferozeshah Road, New Delhi 63,338 06.05.2016 R A/c No. 18250310051023 of UCO Bank, Ferozeshah Road, New Delhi 70,141 06.05.2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of natural justice as the same has been passed without affording an opportunity of being heard to the appellant, whose rights are adversely affected by the said impugned order. The said impugned order is thus liable to be set aside to the extent it adversely affects the rights of the appellant. 12. It is not denied by the respondent that the factum of the sale of the said property having been brought to the notice of Directorate of Enforcement as well as the Ld. Adjudicating Authority by the accused persons against whom the proceedings under PMLA have been initiated, however, the Directorate of Enforcement as well as the Adjudicating Authority without calling upon the appellant still proceeded to pass an order of attachment in respect of the said property without affording an opportunity of being heard to the Appellant. 13. With regard to property in dispute, as per material placed on record, it is evident that the said property had been purchased by M/s. Shamken Multifab Ltd. from Mr. O.P. Gupta, the original allottee, as way back as on 04.11.1992 for a consideration of Rs. 33 lakhs. The copy of the perpetual lease deed in favour of Mr. O.P. Gupta dated 04.05.1978 by virtue of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ab Ltd. to M/s. Arindam Sekhar Garments Marketing Pvt. Ltd. with whom the registered Agreement to Sell dated 01.09.2011 had been executed. On receipt of the said information, M/s. Arindam Sekhar Garments Marketing Pvt. Ltd. approached the Appellant herein for the sale of the said property as pleaded. 17. It is the case of the appellant that prior to entering into the Sale Deed dated 09.11.2013, the Appellant had carried out the requisite due diligence in respect of the said property. The sub-Registrar‟s office and the Registrar of Companies had been duly inspected in order to ascertain whether there was any registered charge, lien and/or encumbrance on the said property. Upon an inspection, the said property was found to be free from any charge, lien, encumbrance, restriction and/or third party claims in any manner whatsoever. It was only pursuant thereto and upon bonafidely believing the representations and assurances made by M/s Shamken Multifab Ltd. and M/s. Arindam Sekhar Garments Marketing Pvt. Ltd., the Appellant agreed to purchase the said property for a valuable consideration of Rs. 10 crores. Pursuant to discussions which took place between the parties and relying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the same would be provided only pursuant to receipt of a clearance from the office of the Directorate of Enforcement. The appellant thereafter visited the office of the Directorate of Enforcement and made enquiries. The appellant was informed that an investigation against Shamken Group of Companies and its Directors was underway and the said property in question was a part of the said investigation. As per settled law that after execution of sale deed and exchanges consideration, the registration of sale deed is merely formality. In the present case the entire consideration was paid by the appellant. There is no allegation against the appellant that any part of black money is involved. Rather no criminal complaint of schedule offence is pending or under the PMLA. 22. It is alleged by the appellant that the correct details in respect of the said property and the sale agreement entered into with the appellant were duly brought to the notice of the Dy. Director of the Directorate of Enforcement before passing the provisional attachment order and after hearing, the appellant was assured by the Dy. Director that he has no response to worry as evidently the said property had been bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25. In order to understand that the brief chronological description of the transfer of the title of the said property over the years is as under:- 04.05.1978 A perpetual lease dated 04.05.1978 was executed in favour of Mr. O.P. Gupta with respect to the said property. 04.11.1992 Vide a GPA dated 04.11.1992 the said property was purchased by M/s. Shamken Multifab Ltd. from Mr. O.P. Gupta, the original allottee for a consideration of Rs. 33 lakhs (Registered GPA dated 04.11.1992 and all other relevant documents are) 05.09.2011 A registered agreement to sell dated 05.09.2011 was executed between the M/s Arindam Sekhar Garments Marketing Pvt. Ltd. and M/s Shamken Multifab whereby M/s Shamken Multifab agreed to sell the said property to M/s Arindam Sekhar Garments Marketing Pvt. Ltd. for a sale consideration of Rs. 5.66 crores. The said Agreement to sell was duly registered in the office of the Sub-Registrar - V on 05.09.2011 and requisite stamp duty of Rs. 33,96,000/- had been paid by M/s Arindam Sekhar Garments Marketing Pvt. Ltd. (Registered agreement to sell dated 05.09.2011 30.10.2012 Vide conveyance deed dated 30.10.2012, duly registered as document No. 22100 in Addl Book ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is admitted by him that ED and Adjudicating Authority were fully aware about the transfer of title of the property but no notice was issued as it was not required. It is also not denied by the counsel that the amount paid by the appellant was tainted. It is not denied by him that there is no provision of review of any order passed by the Adjudicating Authority. By the impugned order, large number of properties were attached and confirmed after hearing the respective parties except the appellant who even not given any notice. If the impugned order is set-aside and remand back the matter for rehearing, then all the parties would have to be reheard. Thus, both the parties have made their submissions on merit in the present appeal which is pertaining to one immoveable property. 29. It is also mentioned in the said documents that the construction work was done from 1990 to 1999. It is further submitted that the property in question was not sold to M/s. Horizon Info Solutions Ltd. by M/s. Shamken Multifab Ltd. and the title of the property rests in the name of M/s. Shamken Multifab Ltd. There is no registered sale deed in favour of M/s. Horizon Info Solutions Ltd. As per Section 49 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f passing the provisional attachment as well as at the time of confirmation of order. However, no notice was issued. No opportunity of being heard was given to the Appellant under Section 8(2) of the PMLA even though the property in question has been duly purchased by the Appellant. This fact was brought to the knowledge of the Ld. Adjudicating Authority through the statements of the accused persons themselves and yet the impugned actions were taken without hearing the Appellant. Once the fact of having sold the property was brought to the knowledge of the Ld. Adjudicating Authority, it was incumbent upon the Ld. Adjudicating Authority that the Appellant ought to have been called upon and asked to furnish proof relating to the true title of the said property in terms of Section 8(2) of the PMLA. 34. Thus, the Impugned Order was passed in violation the mandatory provisions as well as against the principles of natural justice. The Appellant was not arrayed a party to the said proceedings and was passed at the back of the appellant. In The impugned order dated 03.02.2017 itself notes at page No. 62 the entire transaction pertaining to the said property and the fact that: "Subsequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng regarding confirmation of attachment. 38. This scheme of law has no scope for segregating the proviso of Section 8(1) and Section 8(2). The noticees as well as any other person who claims a right in the property has to be heard before a final order of confirmation of attachment is passed so that the submissions and pleas made by such a person are taken on record and given due consideration before arriving at a final decision by the Adjudicating Authority. No justification has been given by the counsel for the respondent that why despite of knowledge about the appellant who is claiming ownership of the property, no notice was given to him which is mandatory under the Act. Both E.D. and adjudicating authority are an expert bodies. Prescribed period of time of 180 days already expired. If, they were aware, now the respondent on their behalf cannot argue that the appeal is not maintainable because being the expert authorities, both did not apply their mind and they do not want to understand mandatory provisions of the act. It cannot be argued in the appeal now that the matter should not be decided and it may be remanded back after having expired 180 days. It is their fault and misu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity recording a finding that the property concerned is involved in money-laundering; therefore, it is also necessary that an offence of money-laundering is believed to have been committed and the same bears a live link with the property sought to be provisionally attached. 43. In present case, the property in question was neither purchased by Shamken in 1992 from the proceed of crime as it is not mentioned in the reason to believe nor it is alleged that the appellant was involved in any manner under the money laundering or had committed the schedule offence. No such complaint is pending against the appellant. 44. The Ld. Adjudicating Authority ought not to have reached an adverse conclusion affecting the rights of the Appellant and ought not to have acted in haste without following the procedure established by law. The only reason given in the impugned order for upholding the provisional attachment order passed by the ED in respect of the said property is that the said property was owned by M/s Shamken Multifab Ltd. as the registration in favour of the Appellant was never done. The impugned order of the Ld. Adjudicating Authority does not even consider whether the said property w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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