TMI Blog2023 (4) TMI 1306X X X X Extracts X X X X X X X X Extracts X X X X ..... putes arising out of that statute, then writ Courts must loathe in interfering the mode prescribed in that stature. The scheme of the PMLA Act provides for mechanism beginning with a Provisional Attachment Order (PAO) attaching the property which is then confirmed by the Adjudicating Authority under Section 8(2) of the Act. When a property stands confiscated, a trial is conducted by the Special Court and in accordance with Section 8(8) of the Act, the Special Court may direct Central Government to restore such confiscated property. Therefore, this Court is of the view that the Appellant/Bank has an alternate efficacious remedy within the scope of the Act - This Court, therefore, does not find any infirmity in the judgment of the learned Single Judge in relegating the Appellant/Bank to the Adjudicating Authority to ventilate its grievances under Section 8(2) of the PMLA Act and the same does not require interference and is accordingly upheld. Application dismissed. - HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD For the Appellant : Mr. Kunal Tandon and Ms. Richa Sandilya, Advocates For the Respondents : Mr. Zoheb Hossain, Advocate for ED with Mr. Vivek G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gle Judge allowed the said application vide Order dated 04.06.2021 permitting the Appellant/Bank to proceed and finalise the sale of the subject property with the proposed purchaser through a private treaty and also directed that the sale proceeds received by the Appellant/Bank would subject to further Orders. It was also made clear that in case, the Appellant/Bank is unsuccessful in the writ petition; the Court may consider passing appropriate Orders for restitution. 7. The writ petition came up for final hearing before the learned Single Judge on 22.03.2023. The learned Single Judge after hearing the parties held that the sale proceeds would continue to remain with the Appellant/Bank and the Appellant/Bank is free to approach the Adjudicating Authority under Section 8(2) first proviso of the PMLA Act to establish before the Adjudicating Authority that the subject property is not involved in any money laundering activities. The learned Single Judge vide the Order impugned herein in the present LPA passed the following directions:- 14. It is observed that the challenge is to a PAO dated 2nd September, 2019 and the purpose of ensuring that the subject property is duly sold and the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bank as the Adjudicating Authority, while confirming the PAO Order No.12/2019 dated 02.09.2019, has already held that the subject property is involved in money laundering activities and the same is proceeds of crime. He submits that the learned Single Judge ought to have decided the issue at the first instance as to whether the subject property could have been attached as proceeds of crime by the Enforcement Directorate or not. 11. Per contra, Mr. Zoheb Hossain, learned Counsel appearing for the Enforcement Directorate (ED), submits that the present case arises out of offences of criminal breach of trust and forgery committed by the accused persons between 2007 and 2018 and this period overlaps with the period of creation of mortgage. He, therefore, submits that it is for the Appellant to prove that he has taken due diligence and has taken reasonable precautions to ensure that the property which was mortgaged to them was not a tainted asset. He submits that in accordance with Section 8(2) of the PMLA Act, the Adjudicating Authority has been bestowed with the jurisdiction to hear any aggrieved person who claims that his property has been wrongfully attached. He submits that Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Government to restore direct the confiscated property or part thereof of a claimant with a legitimate interest in the properly, who may have suffered quantifiable loss as a result of the offence of money laundering: Provided that the Special Court shall not consider such claim unless it is satisfied that the claimant has acted in good faith and has suffered the loss despite having taken all reasonable precautions and is not involved in the offence of money laundering:] [Provided further that the Special Court may, if it thinks fit, consider the claim of the claimant for the purposes of restoration of such properties during the trial of the case in such manner as may be prescribed.] 15. The predicate offence in the present case are acts of criminal breach of trust and forgery by the accused persons with respect to the credit facilities provided by the Appellant/Bank between the years 2007-2018. The issue as to whether the commission of the offence between 2007-2018 overlaps or is prior to the creation of mortgage can be adjudicated by the authorities under the PMLA Act and this Court, at this juncture, is not inclined to go into that question. This Court, therefore, does not f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. (See Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1] .) The present case attracts applicability of the first two contingencies. Moreover, as noted, the petitioners' dealership, which is their bread and butter, came to be terminated for an irrelevant and non-existent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings. 18. The abovementioned two judgments have further been quoted and followed by the Apex Court in the case of M/s. South Indian Bank Ltd. Ors. vs. Naveen Mathew Philip Anr. Etc. passed in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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