TMI Blog2020 (12) TMI 1334X X X X Extracts X X X X X X X X Extracts X X X X ..... rward his grievances before the concerned authority, who has passed the order and/or their Higher/Appellate Authority, as the case may be. There are no merit in the Application, hence, the instant application is not maintainable - application dismissed. - IA 81 of 2020 in C.P. (I.B) No.397/NCLT/AHM/2018 - - - Dated:- 31-12-2020 - HON BLE MS. MANORAMA KUMARI, MEMBER JUDICIAL AND HON BLE MR. CHOCKALINGAM THIRUNAVUKKARASU, MEMBER TECHNICAL For the Appellant : Mr. Vishal Jam, C.A. For the Respondent : Mr. Kiran Shah, FCA for RP, Mr. Aviruth Purusothamav, Advocate, Mr. Bhagyodaya Mishra, Advocate ORDER Per se: Ms. Manorama Kumari, Member (Judicial) 1. The instant application is filed under section 14; 18; 25 60 (5) of the Insolvency and Bankruptcy Code, 2016 with a prayer to quash and set aside the attachment of the property of the corporate debtor by the respondent (E.D.) made vide order dated. 08.05.2019 and order dated 24.10.2019 passed by Adjudicating Authority, PMLA apart from other prayers. 2. The fact of the case is that the IB application was admitted on 06.09.2019 under section 7 of the IB Code appointing Mr. Anil Kumar as IRP. It is subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of CIRP against the corporate debtor was issued by the NCLT, Ahmedabad bench. In view of the said order, IRP made appearance through its counsel before PMLA and apprised the detailed position that property of the corporate debtor cannot be attached against whom CIRP has been initiated, particularly in light of the provisions contained in Section 14 (1) of IBC, 2016 which provides for moratorium on the corporate debtor. 5. It is further submitted that action of the complainant was arbitrary since the said property was mortgaged to Bank of India against the loan availed by the corporate debtor. It is further submitted that the said property cannot be attached by the respondent in view of Section 8 (i) of Prevention of Money Laundering Act, 2002, knowing that there exists charge on the property and this mortgage had already been created. 6. It is further stated that Section 238 of the IB Code inter alia states that the provisions of this Code shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law. Under such circumstances when Section 238 prevail over o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notwithstanding anything contained in the clauses (1) and (2) of the Section 32(A), the Corporate Debtor and any person, shall extend all assistance and co-operation to any authority investigating an offence committed prior to the commencement of the Corporate Insolvency Resolution Process. 11. The Hon ble High Court of Madras has recently dealt with the issue, in the matter of Deputy Director, office of the Joint Director, Directorate of Enforcement Vs. Asset Reconstruction Company (In dia) Limited and Others (Writ Petition No. 29970 of 2019 and WMP nos. 29872 34971 of 2019), wherein, the Hon ble High Court of Madras, observed that NCLT has no jurisdiction to go into the matters governed under the Prevention of Money Laundering Act, 2001 (PMLA) and, therefore, Section 14, being consequent upon an order passed by the Adjudicating Authority declaring moratorium, would not apply to the PMLA which is a distinct and special statute having its own objective and as such Section 14 would not bar a proceeding under the Act. For the sake of brevity, para 8, 9 10 of the said judgement is reproduced herein below: - Para 8. Section 14 of the IBC speaks of moratorium. A decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son, or (ii) authority including the Government. They may be issued (i) for the enforcement of any of the rights conferred by Part III, and (ii) f or any other purpose. But the exercise of power recognised by clause (1) of article 226, is restricted by the territorial jurisdiction of the High Court, determined either by its geographical location or by the place where the cause of action, in whole or in part, arose. While the nature of the power exercised by the High Court is delineated in clause (1) of the article 226, the jurisdiction of the High Court for the exercise of such power, is spelt out in both clauses (1) and (2) of the article 226...... 24. Therefore, insofar as the question of exercise of the power conferred by Article 226, despite the availability of a statutory alternative remedy, is concerned, Anisminic cannot be relied upon. The distinction between the lack of jurisdiction and the wrongful exercise of the available jurisdiction should certainly be taken into account by High Courts, when article 226 is sought to be invoked by passing a statutory alternative remedy provided by a special statute...... 28. Therefore, as rightly contended by the learned Attorney ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether NCLT would have jurisdiction over a decision taken by the Government under the provisions of MMDR Act, 1957 and the Rules issued thereunder. The only provision which can probably throw light on this question would be sub -section (5) of section 60, as it speaks about the jurisdiction of the NCLT. 13. The Learned Single Judge of the Delhi High Court in the Deputy Director, Directorate of Enforcement Delhi vs. Axis Bank Manu/DE/1120/2019 has dealt with the similar issue in extensor. Ultimately, the following conclusion has been arrived at. 171. (i) The process of attachment (leading to confiscation) of proceeds of crime under PMLA is in the nature of Civil sanction which runs parallel to investigation and criminal action vis- -vis the offence of money laundering.... (vi) The objective of PMLA being distinct from the purpose of RDBA, SARFAESI Act and Insolvency Code, the latter three legislations do not prevail over the former... ... ... (viii) the PMLA, RDBA, SARFAESI Act and Insolvency Code (or such other laws) must co-exist, each to be construed and enforced in harmony, without one being in derogation of the other with regard to the assets respecting which the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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