TMI Blog2019 (6) TMI 1150X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be said to have attained finality until and unless all the remedies under the Act have been exhausted. No doubt, the bank and financial institutions are always at liberty to approach the Special Court (if so desired) in order to invoke the amended provision of sub section 8 of Section 8, however, it is wrong to suggest that the bank and financial institutions are not entitled to challenged the order of attachment because this tribunal is only exclusively having jurisdiction to examine the validity of attachment and to decide the same under section 26 of the Act as to whether attachment was valid or not. The bank and financial institution are entitled to take the remedy before the Special Court after the decision of appeal or during the pendency of appeals. The Appellant has nothing to do and has no connection with the allegation of crime committed by the borrowers. Bank is not involved for the offences of money-laundering. The mortgage properties are admittedly not derived from criminal activities or proceed of crime. The scope of the PMLA is to punish the accused person and not to punish a innocent person who is not involved in the crime within the meaning of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dt. 07.03.2016 came to filed by CBI for the offences punishable under section 120 B, 409, 420, 467, 468, 471 of IPC and section 13(2) r/w 13(1) (c) and 13(1) (d) of PC Act against Bharat Bomb, Shankar Khadelwal, Vipul Kaushik, Santosh Kumar Gupta and Usha Gupta. Investigation against Satish Kumar, Sanjiv Kumar, Deshraj Meena, Adarsh Manchanda, Awadesh Tiwari, Piyush Jain and Vineet Jain is shown to be pending. ECIR dt. 11.07.2016 came to be registered by the Enforcement Director as the offences under section 120 B, 420, 467 and 471 of IPC and section 13(2) r/w 13(1) (d) of PC Act are the scheduled offences. The Charge-Sheet reveals that without requisite KYC documentation, over 386 bank accounts were opened by the suspects in the said three branches of Syndicate Bank at (i) Malviya Nagar branch, Jaipur, (ii) M.I. Road branch, Jaipur and (iii) Bapu Nagar Branch, Udaipur by using identification documents of genuine account hodlers in other banks with the nexus of bank officials for diverting the bank funds to the tune of 1055.79 Cr. to various destinations by adopting three different modus operandi i.e. (i) discounting of forged cheques, (ii) withdrawing money through over-draft faci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kar Khandelwal, his family members his group of companies; Himanshu Verma his companies; Pavitra Kothari, family member his companies for investment/loan purpose by way of complex maze of financial transactions. Bharat Bomb through the accounts of his associates, and his fictitious firms transferred about ₹ 231.20 Cr. in accounts of Shankar Lal Khandelwal of Guman Group, his family members and his companies out of the Proceeds of Crime generated from Syndicate Bank Fraud and out of the above fund about ₹ 103.07 Cr. has been repaid by Shankar Lal Khandelwal of Guman Group, his family members, his companies and more than ₹ 128,13,64,438/- is still outstanding. Further, Shankar Lal Khandelwal committed fraud aggregating to ₹ 58,22,00,000/- by availing fraudulent housing loans in the name of his associates, employees, family members by showing illicit booking of flats in various projects of Guman Group. That in aggregate Shankar Lal Khandelwal of Guman Group, his family members and his companies are beneficiary of more than ₹ 1,86,35,64,438/- which are Proceeds of Crime generated out of Syndicate Bank fraud. Further, Pavitra Kothari, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pa Rolling Mills LLP; (xii) Movable Immovable properties registered in the name of Santosh Kumar Gupta, Chief Manager, Syndicate Bank (Retired) and his family members (xiii) Movable Immovable properties registered in the name of Deshraj Meena, Chief Manager (Suspended), Syndicate Bank and his family members (xiv)Immovable properties of Himanshu Verma and his companies (xv) Immovable properties of Pavitra Kothari, Daulatraj Kothari, Priya Kothari (xvi) Vill No. 40, Pafrth City Kalwar Road, Jaipur registered in the name of Mahendra Meghwal and cash of ₹ 66,88,400/- seized by CBI from Mahendra Meghwal (xvii) Plot No. A-5, Airport Enclave (Airport Plaze Extension) Tonk Road, Jaipur admeasuring 7276.40 Sq. Mtrs in the name of M/s. A. Gangwal Real Estate LLP (xviii) Proceeds of Crime available in various bank accounts of different firms/persons whose accounts were used by Bharat Bomb in defrauding Syndicate Bank (xix) Proceeds of Crime available in various bank accounts of different firms/persons controlled by Shankar Lal Khandelwal. f) It is evident that prime facie the Defendants are in possession of the proceeds of crime and/or have committed the offence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d land as principal security against the loan. As the land was purchased from JDA and there was no dispute about the title, RIICO after due diligence sanctioned the loan of ₹ 40 Crores to M/s A. Gangwal Real Estate LLP vide its Letter of Intent No. ID.D.1 (2205) dated November 09, 2015. 7. The security for the said loan the aforesaid Plot No. A-5, Airport Enclave, Airport Plaza Extension, Tonk Road, Jaipur was kept as principal Mortgage. Additional Security in the form of Group Housing Plots measuring 11502 and 9822 sq yards in Parth City, Phase I, Kalwar Road, Jaipur was kept as mortgaged with RIICO which were owned by M/s Shri Govind Kripa Buildcon Pvt Limited being Respondent No. 85. 8. The said mortgage was by way of deposit of Title Deeds and on 18.11.2015, the borrower deposited Original Title Documents of A-5, Airport Enclave, Airport Plaza Extension, Tonk Road, Jaipur with the Appellant which are filed at Page 780 Vol III. Similarly the borrower also deposited original title documents of Group Housing Plots measuring 11502 and 9822 sq yards in Parth City, Phase I, Kalwar Road, Jaipur to the Appellant on 20.11.2015 filed at Page 737 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty (otherwise assumably untainted) by such third party cannot conceivably be on account of intent to defeat or frustrate this law. In this view, it can be concluded that the date or period of the commission of criminal activity which is the basis of such action under PMLA can be safely treated as the cut-off. From this, it naturally follows that an interest in the property of an accused, vesting in a third party acting bona fide, for lawful and adequate consideration, acquired prior to the commission of the proscribed offence evincing illicit pecuniary benefit to the former, cannot be defeated or frustrated by attachment of such property to such extent by enforcement authority in exercise of its power under Section 8 PMLA. 165. Situation may also arise, as seems to be the factual matrix of some of the cases at hand, wherein a secured creditor, it being a bonafide third party claimant vis-a-vis the alternative attachable property (or deemed tainted property) has initiated action in accordance with law for enforcement of such interest prior to the order of attachment under PMLA , the initiation of the latter action unwittingly having the effect of frustrating th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsolvency proceedings under the I B Code for enforcement of its interest. S. 13 SARFAESI allows secured creditors to enforce security. 17. Pertaining to jurisdiction of this appellate tribunal, it is clear that in terms with the statutory safeguards incorporated in the Act, any party aggrieved by the confirmation of the Provisional Attachment Order by the Adjudicating Authority may challenge such confirmation in an appeal to this Hon‟ble Tribunal U/s 26 of the Act and then before the Hon‟ble High Court U/s 42 of the Act against the order of this Tribunal. Accordingly, under the legislative and statutory scheme of the Act, unless a party has exhausted its remedies in appeal right up to the Hon‟ble High Court, an order confirming the attachment cannot be said to have attained finality. This Tribunal is only concerned with the validity of the impugned order and provisional attachment order which has been confirmed. 18. Therefore, this Tribunal possesses the requisite jurisdiction in terms with the Act as the court of first appeal, to adjudicate upon the pleas of the Appellant and determine the bonafides and legitimac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judgment has erred in failing to recognise the legitimate claim of the Appellant at the stage of confirmation of the PAO itself. Actually the borrowers always happy if their mortgaged properties stand attached so that they may not pay the loan amount and their property shall remain in safe heaven. The Adjudicating Authority has dealt with the legal issue raised by the appellant. 20. The main findings of the Hon‟ble High Court of Delhi in which the exceptions are created, are as follows:- (i) Date of Commission of offence of Money Laundering under PMLA is the cut off date and if the Bank has mortgage / charge over the properties prior to the commission of offence under PMLA then it is a Bonafide Claimant and its Statutory rights can‟t be defeated under Section 8 of PMLA, 2002. (ii) Priority of Bonafide Claimants / Secured Creditors will have their dues realized first from the sale of such attached immovable assets and if any balance is left out then the balance amount shall go to the ED on the premise that the said properties will continue to remain attached with the ED under PMLA on the ground of value thereof. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.16 Crores in year 2014. As a result of this attachment, the Appellant has been unable to liquidate the same and satisfy its dues. 25. It is submitted on behalf of appellant that merely because out of total consideration, a small amount of money which is alleged Proceeds of Crime Is used to purchase a property, the entire property cannot be attached under Section 8(3) of the Act. It is stated that as on 15.4.2019 the outstanding term loan dues of RIICO against Respondent No. 34 are ₹ 37,95,76,329.00 (₹ 37.96 Crores). The demand of Enforcement Directorate against said respondent is ₹ 7.37 Crores. 26. It is also a matter of fact that another property situated at Parth City, Phase I, Kalwar Road, Jaipur being Group Housing Plot measuring 11502 sq yards has been mortgaged with the Appellant to the extent of ₹ 10.25 Crores by the ED whereas the Circle Rate / DLC rate of the said property is ₹ 15.72 Crores. 27. It is stated on behalf of appellant that the attachment may therefore be vacated over the property situated at A-5, Airport Enclave, Airport Plaza Extension, Tonk Road, Jaipur admeasuring 7276.40 sq ..... X X X X Extracts X X X X X X X X Extracts X X X X
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