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Judgment
FPA-PMLA-3209/COCHIN/2019
An application has been filed to substitute Housing Development Finance Corporation Ltd. with HDFC Bank Ltd. It is for the reason that Housing Development Finance Corporation Ltd. has amalgamated with HDFC Bank. The prayer to substitute the appellant is not opposed and accordingly the application is allowed. The amended cause title is taken on record.
The appeal was argued finally to question the order passed by the Adjudicating Authority confirming the provisional attachment order finding a case for an offence under Section 13(1)(d) and 13(2) of The Prevention of Corruption Act, 1988. The appellant had advanced the loan of Rs. 75,00,000/- on mortgage of one property of the main accused’s son. The appellant has legitimate claim to secure their loan and, therefore, attachment of the property to that extent has been challenged to allow the appellants to proceed for recovery of the amount. In the alternative, the appellant’s right may be protected under Section 8(8) of Prevention of Money Laundering Act, 2002.
The learned counsel for the respondents submitted that rights of the appellant are protected under Section 8(8) of the Act of 2002. In case of confiscation of the property or acquittal, they would be at liberty to ensure recovery of the amount from attached property but at this stage, no interference in the order of attachment be made. It is otherwise a fact that property was earlier attached by the Special Judge by its order dated 19th March, 2015.
We have considered the rival submissions of the learned counsel for the parties. The provisional attachment order so also the order passed by the Adjudicating Authority have been set aside in the connected appeal No. FPA-PMLA-3182/Cochin/2019 to FPA-PMLA-3186/Cochin/2019 by a reasoned order. The property in question is under attachment pursuant to the order of the Trial Court thus could not have been attached under the Act of 2002.
In the light of the aforesaid this appeal is also allowed. The order of provisional attachment and the order of Adjudicating Authority are set aside. The property in question is under attachment pursuant to the order of the Special Court dated 19.03.2015. A reference of the said order has been given while deciding the appeal No. 3182/2019 to 3186/2019. It is with the clarification about the right of the respondents to attach the properties by invoking Section 5 (1) of the Act of 2002, in case Special Judge withdraws the attachment on completion of Trial.