IDBI Bank Ltd. vs Deputy Director Directorate Of Enforcement & Ors., Delhi

Sr.

no.",Address of the Property,Ownership,"Valuation as per

bank(INR)

1.,"Shop no. 120, 1s t Floor, 6 DLF

Industrial Area, Moti Nagar, New

Delhi-110015","Mrs. Shallu Suri w/o Sh.

Arun Suri",28.05 lacs

2.,"Shop no. 129, 1s t Floor 6 DLF

Industrial Area, Moti Nagar, New

Delhi-110015",Sh. Arun Suri,21.20 lacs

3.,"Shop no. 130, 1s t Floor 6 DLF

Industrial Area, Moti Nagar, New

Delhi-110015","Mrs. Shallu Suri w/o Sh.

Arun Suri",21.20 lacs

4.,"Plot no. 307, 3r d Floor, 6 DLF

Industrial Area, Moti Nagar, New

Delhi-110015",Sh. Arun Suri,1.50 crores

5.,"Plot no. 8, DLF Industrial Area, Moti

Nagar, New Delhi- 110015","M/s S.T.

Enterprises, a partnership

firm of Sh. Arun Suri and

his wife Smt. Shallu Suri",9.71 Crores

6.,"Plot no. 34, IInd Floor, DLF Industrial

Area, Moti Nagar, New Delhi-110015","Mrs. Shallu Suri w/o Sh.

Arun Suri",1.67 Crores

7.,"Shop No. 4,6, DLF Industrial Area,

Moti Nagar, Delhi",Sh. Arun Suri,1 crore

8.,"Shop No. 128, 1s t Floor, 6, DLF

Industrial Area, Moti Nagar, Delhi",Sh. Arun Suri,34.32 Lacs

9.,"House No. 255, Sainik Vihar,

Pitampura, New Delhi","Sh. Arun Suri and his

mother Smt. Viran Wali

Suri","5.18 crores to the

extent of 50% (2.59

crores)

,,Total Value,17.52 crores

The following are the contentions raised by the appellant in its written arguments:,,,

6.1 That the Respondent no. 2 being the proprietor of M/s Aryan Electronics had approached the Appellant Bank in the month of January, 2009 for",,,

sanction of Cash Credit Facility and upon their specific request, the Appellant Bank Sanctioned the said facility o the respondent no. 2. That",,,

Respondent no. 2 had executed various security documents and in order to secure the said facilities had also created a mortgage in respect of six,,,

properties including the two properties attached in terms of section 5 by the Adjudicating Authority i.e.:-,,,

(a) Shop No.4, 6 DLF Industrial Area, Moti Nagar, New Delhi and (b) Shop No. 128, Ist Floor, 6 DLF Industrial Area, Moti Nagar, New Delhi.",,,

6.2 That upon execution of the security documents, the equitable mortgage was created by Respondent No.2 on 16.01.2009 and the title deeds dated",,,

23.07.2003 with respect to shop No. 4 and title deed dated 18.03.2003 with respect to shop No. 128 were deposited with the Appellant Bank to secure,,,

the said Facility.,,,

6.3 Subsequently on the request of Respondent No.2, the said Facility was enhanced from Rs. 300 Lacs to Rs. 500 Lacs on the basis of sanction letter",,,

bearing Reference No. IDBI/SME/84/AE dated 23.10.2009. And subsequently the said facility was further enhanced up to Rs. 750 Lacs on the basis,,,

of sanction letter bearing Reference No. IDBI/SME/2010-11/2035 dated 10.07.2010. The charge over the properties, by way of equitable mortgage",,,

were extended in order to secure the enhanced facilities and executed Affidavit dated 19.07.2010 jointly. It is pertinent to mention here that at no point,,,

of time, the mortgage rights with respect to said two properties were released by the bank and at all times, the charge was extended for enhanced",,,

facilities.,,,

6.4 However, the Respondent No. 2 started committing default and failed to maintain the financial discipline and the account of the Respondent in the",,,

name of M/s Aryan Electronics started showing irregularities. The Respondent No.2 had not been depositing the sale proceeds through the Cash,,,

Credit Account and therefore, the account of the Respondent No. 2 with the Appellant Bank was declared Non Performing Assets on 31.12.2012, in",,,

terms of the RBI guidelines issued from time to time.,,,

6.5 That since the Respondent No. 2 had not been coming forward to pay the outstanding amount, the Appellant Bank issued notice under Section",,,

13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (“SARFAESI Actâ€) dated",,,

30.01.2013 calling upon the Respondent No. 2 and other parties to pay the amount within 60 days. However, the Respondent No. 2 failed to pay the",,,

amount and as such the Appellant Bank had already initiated the proceedings under SARFAESI Act for recovery of its dues. Even the receiver was,,,

appointed to take the possession of one of the mortgaged properties by the Court of Ms Charu Aggarwal, CMM(West), Tis Hazari Court, Delhi vide",,,

order dated 07.06.2017.,,,

6.6 Not only this, the Appellant Bank has also filed an Original Application (OA) for recovery against the Respondent No. 2, 3, 4 and a partnership",,,

firm in the name of M/s Sky Vision for recovery of Rs. 11,19,81,600.44 vide OA bearing No. 582/2014 before the DRT-III, New Delhi, wherein the",,,

Respondents and other parties were served and the said case is now at the stage of final arguments before the Debt Recovery Appellate Tribunal,",,,

New Delhi.,,,

6.7 As is evident from the complaint filed by Respondent No.1, the Respondent No.2 in collusion with others had committed serious irregularities",,,

pertaining to the Foreign Exchange Transaction in the Current Accounts of various firms/companies in overseas foreign exchange remittances,,,

amounting to approx. Rs. 3600 Crores as was reported by the Internal Audit Report of Bank of Baroda. In pursuance to the complaint filed by the,,,

Bank of Baroda, CBI registered a case/FIR No. RC.BD.F1/2015 dated 09.10.2015 against 59 current account holders as",,,

proprietor/directors/companies as per the list mentioned in the impugned order and unknown bank officials/private persons for commission of offences,,,

under section 420 read with 120 B of IPC 1860 and under section 13(2) read with Section 13(1)(d) of P.C. Act. On the account of the same, the",,,

aforesaid act amounted to Scheduled Offence under PMLA Act and thus, ECIR vide No. DLZO/20/2015 was registered on 09.10.2015 by",,,

Enforcement Directorate. During the pendency, the Enforcement Directorate vide attachment bearing No. 06/2017 dated 28.07.2017 had attached all",,,

the properties belonging to Respondents No. 2 to 6 herein including the aforesaid two properties already mortgaged with the Appellant Bank.,,,

6.8 Thereafter, the Respondent No.1 filed a complaint before the Adjudicating Authority in terms of Section 5(5) of the Act against Respondent",,,

herein, bearing OC No.809/2017.",,,

6.9 That upon the receipt of show cause notice from the Adjudicating Authority, the Appellant Bank had filed detailed response dated 11.11.2017",,,

along with supporting Annexures. However, after seeking response from the Respondent No.1, the Adjudicating Authority vide its order dated",,,

27.11.2017, rejected the claim of the Appellant herein. Aggrieved from the said order, the Appellant had filed the present appeal.",,,

6.10 It is submitted that the order passed by the Learned Adjudicating Authority is totally wrong, illegal, unjustified and unlawful. That the Learned",,,

Adjudicating failed to appreciate the fact that the above mentioned properties were purchased by the Respondent No.2 in the year 2003, almost 11",,,

years before the alleged transactions under investigation in the complaint filed by the Bank of Baroda which are reportedly having occurred during the,,,

year 2014-15. As per the FIR the entire transactions were post 2014 period and as such purchase of the above two properties could not be linked or,,,

attributed to transactions happening in the year 2014-2015. Therefore, admittedly no proceeds of crime could have travelled towards the assets of",,,

Respondent No.2, as they were purchased in the year 2003 much prior to the alleged period of conspiracy.",,,

6.11 That the Adjudicating Authority failed to appreciate and consider the fact that the security/mortgage documents of the properties in question are,,,

lying with the Appellant Bank since 2009(filed as Annexure A-1 to A-10) and the Adjudicating Authority had wrongly upheld that the same were the,,,

proceeds of crime. It would not be out of place to mention over here that it is certainly not the case or matter under investigation with the Respondent,,,

No.1 that the property which is subject matter of the present Appeal have been purchased on the basis of fraudulent transaction entered by,,,

Respondent No.2 to 6 in violation of the foreign exchange rules as reported by Bank of Baroda. In fact, the said properties have been purchased much",,,

prior to the period when the Sections 120-B and 420 IPC were not Scheduled Offences under PMLA. That the offences under section 120-B and 420,,,

of IPC as well as section 13 of PC Act only became Scheduled Offences w.e.f. 01.06.2009 by virtue of The Prevention of Money,,,

Laundering(Amendment) Act, 2009(21 of 2009). Therefore, it is submitted that the monies which came into the accounts of the Appellant prior to this",,,

date, from which ever source, does not certainly qualify as “proceeds of crimeâ€​ as Sections 120B and 420 of IPC as well as section 13 of PC Act",,,

were not scheduled offence at the time the acquisition of these properties, i.e. prior to 01.06.2009. Thus, the impugned order dated 27.11.2017 is liable",,,

to be set aside on this short score alone.,,,

6.12 That on account of Amendment in SARFAESI Act by way of addition of Section 26(E) to the said Act and in Recovery of Debt Due to Banks,,,

and Financial Institutions Act by Section 31B of the Amended Act, the Appellant Bank would have superior right of recovery of debt dues and the",,,

debt due to the Secured Creditors shall be paid in priority of all other debts and other revenue/taxes/cess payable to the Central Government/State,,,

Government/Local Authorities.,,,

6.13 That the Ld. Adjudicating Authority failed to appreciate the fact that the Appellant Bank is a Public Sector Institution and by initiating the action,,,

is only recovering public exchequer and hence the Appellant is within its right to enforce the dues and thus, the impugned order is liable to be set aside.",,,

6.14 That after the promulgation of PMLA Act, amendments were brought to the SARFESI Act by the Legislature whereby Section 26(E) was",,,

introduced to the SARFASI Act and Section 31B Recovery of Debt Due to Banks and Financial Institutions Act and the said Acts reads as under :-,,,

“26E. Notwithstanding anything contained in any other law for the time being in force, after the registration of security interest, the",,,

debts due to any secured creditor shall be paid in priority over all other debts and all revenues, taxes, cess and other rates payable to",,,

Central Government or State Government or State Government or local authority.â€​,,,

31B. Notwithstanding anything contained in any other law for the time being in force, the rights of secured creditors to realize secured",,,

debts due and payable to them by sale of assets over which security interest is created, shall have priority and shall be paid in priority over",,,

all other debts and Governments due including revenues, taxes, cesses and other rates due to the Central Government, State Government or",,,

local authority.â€​,,,

Though both the SARFAESI Act and PMLA are the special Acts. However, the amendments to the SARFAESI Act has been brought subsequent to",,,

the promulgation of PMLA Act and in particularly on the basis of Central Government notification S.O. 2831(E) dated 01.09.2016, in order to initiate",,,

with the recovery dues of the secured creditors being priority over all other priorities. Admittedly, the properties under reference are lying mortgaged",,,

with Appellant since 2009 and appellant is already at advance stage of sale of those properties under SARFAESI Act and even the proceedings for,,,

recovery under Recovery of Debt Due to Banks and Financial Institutions Act are at final stage. Therefore, the Ld. Adjudicating Authority erred in",,,

holding that the PMLA would prevail over SARFAESI Act enacted by Legislature. Thus, the impugned order is liable to be set aside.",,,

6.15 That the Impugned order is per incuriam sine the Ld. Adjudicating Authority has not followed the decision of this Hon'ble Tribunal in State bank,,,

of India v. Joint Director (FPA-PMLA-1026/KOL/2015; date of decision: 14.07.2017) wherein it was held that the rights of secured creditors to,,,

recover their dues would take precedence over the state's right to attach alleged ""proceeds of crime"". This Hon'ble Tribunal had relied heavily on",,,

Section 31B of the Recovery of Debts Due to Banks and Financial Institutions Act (""RDDBFI Act"") which was inserted vide the Enforcement of",,,

security Interest And Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Act, 2016. That the said provision has already been",,,

stated above. That since two of the properties of the Respondent no. 2 that have been attached by the Respondent no. 1 have been lying mortgaged,,,

with the Appellant Bank since 2009 and the Appellant has also initiated proceedings before the DRT under section 19 of the RDDBFI Act. Therefore,",,,

the decision of this Hon'ble Tribunal in SBI vs. Joint Director would squarely apply to the facts and circumstances of the present case and the APO,,,

would have to be set aside.,,,

6.16 That the Adjudicating Authority failed to appreciate that while issuing a provisional attachment order under section 5 of the PMLA, both clauses",,,

(a) and (c) of sub-section (1) need to be fulfilled. It is submitted that in the instant case clause (c) is not attracted because the Respondent had no,,,

reason to believe"" that the alleged proceeds of crime ""are likely to be concealed, transferred or dealt with in any manner which result in frustrating",,,

any proceedings relating to confiscation of such proceeds of crime."" This is because the attached properties (Specifically two properties mentioned",,,

above) are already lying mortgaged with the Appellant, and Appellant is in possession of original title deeds of said properties. Demand notice u/s",,,

13(2) of the SARFASEI Act have been sent and recovery proceedings u/s 19 of the RDDBFI Act, 1993 before the Hon'ble DRT have been",,,

commenced. Therefore, the apprehension of the Respondent no. 1 that the Respondent no. 2 is likely to conceal, part with or transfer the attached",,,

properties is completely baseless as he cannot divest the properties whose original title deeds are not with him. In the case of Mahanivesh Oil &,,,

Foods Pvt. Ltd. vs. directorate of Enforcement, it was held that ""A mere mechanical recording that the property is likely to be concealed, transferred",,,

or dealt with would not need the requirements of Section 5(1) of the Act.""",,,

It is submitted that in the instant case also, a mere mechanical findings has been recorded that the present PAO was necessitated because",,,

Respondent has reason to believe that the Appellant would transfer or conceal the properties. It is pertinent to mention here that this ""reason to",,,

believe"" has to be based on ""material in possession"". However, no material has been disclosed by the Respondent to entertain such a belief. Since no",,,

Material"" has been disclosed which gives the complainant a ""reason to believe"" that the properties will be alienated, the entire proceedings are liable",,,

to be dismissed.,,,

6.17 That the Adjudicating Authority failed to appreciate the catena of judgments of the Hon'be Supreme Court like Sukhdev Sing v. State of,,,

Haryana, Varinder Singh v. State of Punjab, Ritesh Agarwal V. SEBI and State of A.P. v. Ch. Gandhi wherein it has been time and again laid down",,,

that there can be no retrospective operation of penal laws.,,,

6.18 That unlike SAFEMA and NDPS Act, the PMLA contains no express provision for retrospective application As per express explanation 4 to",,,

Section 2 of SAFEMA, ""facts, circumstances or events (including any conviction or detention) which occurred or took place before the",,,

commencement of their Act"" can be taken into consideration for determining whether or not the provisions of SAFEMA ought to be applied to any",,,

person. Even the definition of ""Illegally acquired property under Section 3(c) of SAFEMA includes any property acquired ""whether before or after the",,,

commencement of this Act"". Similarly, the definition of ""illegally acquired property"" in section 68(B) (g) of the NDPS Act includes even those",,,

properties that were acquired by a person before or after commencement of Chapter VA. This Chapter, which was inserted by virtue of an",,,

amendment in 1989, provides for the forfeiture of properties acquired from the income/earnings attributable to the contravention of any provisions of",,,

the NDPS Act. Such provisions in the SAFEMA and NDPS Act are conspicuously absent in the PMLA, and it is a well settled rule of statutory",,,

interpretation that statutes are to be construed prospectively unless expressly provided otherwise. That the Learned Adjudicating Authority failed to,,,

appreciate the above fact and had wrongly upheld the PAO and therefore, the impugned order is liable to be set aside on this short score.",,,

6.19. It has been wrongly held by the Adjudicating Authority that the Respondent no. 2 to 6 have committed scheduled offences and generated the,,,

Proceeds of Crime and laundered them and thus the properties are liable to be attached. Moreover, the properties attached by way of the impugned",,,

order, were wrongly held by the Adjudicating Authority to be proceeds of crime. it may be submitted that the order passed by the Adjudicating",,,

Authority has ignored the fact that the said properties were purchased much prior to the transactions and were mortgaged with the Appellant Bank,,,

since 2009, almost 6 years prior to the alleged commencement of scheduled offence, therefore, could not be termed as 'Proceeds of Crime' in terms of",,,

the Act or acquired on the basis of such money laundering transaction. Therefore, the confirmation of the impugned attachment order is thus,",,,

arbitrary, unjust, devoid of merits and is thus, not proceeds of crime and the same is liable to be set-aside.",,,

The Respondent has submitted its para wise reply to the appeals in which prayer has been made to dismiss the appeal. The respondent has,,,

contended the following in its reply:-,,,

7.1. The instant case has been brought under the supervision of SIT on Black Money constituted by the Hon'ble Supreme Court of India.,,,

7.2 The Adjudicating Authority vide order dtd.27.11.2017 passed by the Adjudicating Authority in OC No. 809 of 2017 held that by virtue of section 71,,,

of PMLA, the PMLA has overriding effect. It needs to be borne in mind that the amendments by way of introduction of section 26 (e) of the",,,

SARFAESI Act, 2002 and section 31 (b) of Recovery of Debt and Bankruptcy Act, 1993 does not come into play with regard to the liability of",,,

attachment, confirmation of proceeds of crime. The Section 26 (e) above referred has provided that notwithstanding anything contained in any other",,,

law for the time being in force, after the registration of security interest the debt due to any secure creditors shall be paid in priority over all other",,,

debts and all other revenue, taxes and cess and other rates payable to the Central Government and State Government and local authority. So what is",,,

referred are only (1) The other debts, (2) all (i) revenues (ii) taxes (iii) cesses (iv) other rates payable to the Central Government and local authority.",,,

Similarly, section 31(b) above referred provides that notwithstanding anything contained in any other law for the time being in force, the rights of",,,

secured creditors to realize secured debts due and payable to them be sale of assets over which security interest is created shall have priority and shall,,,

be paid in priority over all over debts and Government dues including revenues taxes, cesses and other rates due to the Central Government and State",,,

Government or local authority. So what is referred are only (1) The debts, (2) all Govt. dues including, (i) revenues (ii) taxes, (iii) cesses, (iv) other",,,

rates due to the Central Government and local authority. Thus there is no priority conferred on the secured creditors under the said Acts, in respect of",,,

the proceeds of crime in their hands. The PMLA is a Special Act and is an Act to prevent money- laundering and to provide for confiscation of,,,

property derived from, or involved in money laundering and for matters connected there with or incidental thereto. Section 3 of Act defines money",,,

laundering as whosever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in an)' process or,,,

activity connected with the proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untainted",,,

property shall be guilty of offence of money- laundering.,,,

7.3 Ld. Adjudicating Authority in the above order further held that PMLA law has been made under international obligation pursuant to the United,,,

Nation General Assembly resolution and therefore it will prevail over other laws. The 3 Member Bench of Hon'ble Supreme Court overruling the two,,,

Member Bench decision of Hon'ble Supreme Court in 2014 in KSL and Industries Limited V/s Arihant Threads Ltd. & Ors. in civil appeal No. 5225,,,

of 2008 has held on 27.10.2017 that to decide whether former law or later law will prevail, the intention and purpose of the Act will have to been seen.",,,

On these facts it is held that PMLA law will prevail over SARFAESI Act and DRT Act. In addition these Acts are of earlier date and amendment in,,,

later date will not make Act itself as of 2016.,,,

7.4 The Honble Supreme Court of India held in Bank of India v. Ketan Parekh &Ors 2008 8 SCC 148 as thus:-,,,

... cases might arise where both the enactments have the non-obstante clause then in that case, the proper perspective would be that one",,,

has to see the subject and the dominant purpose for which the special enactment was made and in case the dominant purpose is covered by,,,

that contingencies, then notwithstanding that the Act might have come at a later point of time still the intention can be ascertained by",,,

looking to the objects and reasons.""",,,

7.5 This Hon'ble Tribunal under PMLA,2002 in the matter of Chief Manager, Syndicate Bank, Vs Dy Director, PMLA in Appeal No FPA/PMLA/A-",,,

34/CAL/2009 has been pleased to observe that:-,,,

It has also been held by the supreme Court in catena of judgments that the conflict of non-obstante clause arising in respect of two",,,

enactments has to be resolved on consideration of policy underlying the enactments and the language used in them Sarvan Singh. V.,,,

Kasturilal (AIR 1977 SC 265;) Kamayu Motor Association v. State of Uttar Pradesh (AIR 1956 Sc 785). The Prevention of Money,,,

Laundering Act has been enacted provide for forfeiture of proceeds of crime involved in money laundering which was considered necessary,,,

of deprive persons engaged in serious illegal activities and have thereby been increasing their resources for operating in clandestine,,,

manner. The Act was created to forfeit illegal properties and to prevent the money laundering activities which are threat to financial system,,,

of the county and its integrity and sovereignty. Further the question of prevalence of a subsequent legislation will only come into picture,,,

when there is a conflict between the two statutes. The Securitization Act has been enacted for the purpose of establishing an expeditious,,,

system for recovery of debts due to banks and for matters connected therewith or incidental thereto. It only lays down a procedure for,,,

recovery of debts due to banks. The Prevention of Money Laundering Act vests the statutory authorities with a power to forfeit proceeds of,,,

crime involved in money laundering to the State. There is thus no apparent conflict between the two statutes. The two statutes operate in,,,

their exclusive fields. The question is only who will have his claim on any property where the claim of the State concurs with the claim of any,,,

person. Halsbury explaining the Crown's rights, in relation to property states that the Crown's right and that of a subject under it meet at",,,

one end and at the same time the Crown in general is preferred"".",,,

7.6 The Hon'ble High Court of Andhra Pradesh in the case ofB . Ramaraju s/o B. Ramlinga Raju v. Union of India, [2011] 164 Comp Case 149 (AP)",,,

has held that purchase of movable or immovable property of inducting or integrating proceeds of crime with legitimate money are all covered under,,,

section 3. The Hon'ble Court observed as follows:,,,

The object of the Act is to prevent money laundering and connected activities and confiscation of ""Proceeds of Crime"" and Preventing",,,

legitimizing of the money earned through illegal and criminal activities by investments in moveable and immovable properties often involving,,,

layering of the money generated through illegal activities, i.e., by inducting and integrating the money with legitimate money and its species",,,

like movable and immovable property. Therefore, it is that the Act defines the expressions ""proceeds of crime"" expansively to sub-serve the",,,

broad objectives of the Act. We thus do not find any infirmity in the provisions of the Act.""",,,

7.7 It is also submitted that the section 5(1) empowers the Deputy Director to pass order of provisional attachment, in respect of any proceeds of",,,

crime. The object of the provisional attachment is thus to see that the attached properties remain available for the purpose of confiscation, if any, that",,,

may be ordered by the concerned Court/Special Court. The provision is also with a view to ensure that such property involved in money-laundering of,,,

the property may not frustrate any proceedings under the Act. Thus, the proceeds of crime are liable to be attached upon fulfillment of the conditions",,,

specified in Section 5(1) being existing and upon entertainment of the requisite satisfaction. With a view to achieve the object of the legislation, it is",,,

provided as aforesaid that the Provisions of PMLA shall have effect notwithstanding anything inconsistent therewith contained in any other Law for,,,

the time being in force. Thus in accordance with the law the laundered proceeds of crime which is defined as specified above, are attached by virtue",,,

of the PAO. The huge public money, lying deposited with the banks in trust, is allowed to be faded and evaporated by acting in collusion, irresponsibly",,,

and negligently by the bank officers. There cannot be any justification in giving any clean chit to the defaulting officers and the Banks, they should",,,

have been conscious and more responsible in respect of account with this magnitude of money. The provisions of Section 7 1 of PMLA have,,,

overriding effect. The interest of a victim is protected under the scheme of the Act. The following provisions of PMLA ensures that the claimant, with",,,

a legitimate interest in the property confiscated, may be restored such property or rights therein.",,,

7.8 Where a property stands confiscated to the Central Government under sub-section (5), the Special Court, in such manner as may be prescribed",,,

may also direct the Central Government to restore such confiscated property or part thereof of a claimant with a legitimate interest in the property,",,,

who may have suffered a quantifiable loss as result of the offence of money laundering.,,,

Both the parties have made their submission and they have also referred various documents and cited judgments in their written arguments and para,,,

wise reply respectively. We have heard the submission made by the appellant and the respondent no. 1 with regards to the aforesaid two properties,,,

involved in the present appeal and considered the materials available on records.,,,

Before going into various legal issues raised herein it is felt necessary to deal first with the most important issue i.e. overriding effect of the two,,,

special Acts.,,,

It is the admitted fact that the appellant bank neither an FIR name accused nor any of the officials are involved either in the Scheduled offence or,,,

offence committed under the provisions of PMLA.,,,

On perusal of the impugned order we could not find any material that the aforesaid two properties of this appeals have been acquired out of,,,

proceeds of crime nor it has been established at this stage that the Appellant Bank or its officials are in any way conspired with the respondent at sr.,,,

no. 2 to 6 in the commission of the alleged crime. The Adjudicating Authority in para nos. 58 to 60 of the impugned order stated the following:,,,

By virtue of section 71 of PMLA, the PMLA has overriding effect. It need to be borne in mind that the amendment by way of introduction",,,

of section 26(e) of the SARFAESI Act, 2002 and section 31(b) Recovery of Debts and Bankruptcy Act 1993 does not come into play with",,,

regard to the liability of attachment, confirmation and confiscation of proceeds of crime. The section 26(e) above referred has provided that",,,

notwithstanding anything contained in any other law for the time being in force, after the registration of security interest the debt due to any",,,

secure creditors shall be paid in priority over all other debts and all other revenue, taxes and cess and other rates payable to the Central",,,

Government and State Government and local authority. So what is referred are only (1) The other debts, (2) all (i) revenues (ii) taxes (iii)",,,

cesses (iv) other rates payable to the Central Government and the local authority. Similarly, section 31(b) above referred provides that",,,

notwithstanding anything contained in any other law for the time being in force, the rights of secured creditors to realize secured debts due",,,

and payable to them by sale of assets over which security interest is created shall have priority and shall be paid in priority over all over,,,

debts and Government dues including revenues taxes, cesses and other rates due to the Central government and State Government or local",,,

authority. So what is referred are only (1) The other debts, (2) all Govt. dues including, (i) revenues (ii) taxes, (iii) cesses (iv) other rates",,,

due to the Central Government and the local authority. Thus there is no priority conferred on the secured creditors under the said Acts, in",,,

respect of the proceeds of crime in their hands. The PMLA is a Special Act and is an Act to prevent money-laundering and to provide for,,,

confiscation of property derived from, or involved in money laundering and for matters connected there with or incidental thereto. Section 3",,,

of Act defines money laundering as Whosever directly or indirectly attempts to indulge or knowingly assists or knowingly is a partly or is,,,

actually involved in any process or activity connected with the proceeds of crime including its concealment, possession, acquisition or use",,,

and projecting or claiming it as untainted property shall be guilty of offence of money-laundering. Thus the secured creditors does not and,,,

cannot have any priority over the attachment, confirmation and confiscation of proceeds of crime. It would be against a public policy to",,,

permit the possession of proceeds of crime and its utilization, save and except in the manner provided under the PMLA.",,,

It is However pleaded by the counsel for ED that amendments in the SARFAESI Act/DRT Act deal with the priority of creditors right,",,,

bank dues and Government dues intense. The present case is pertaining to the proceeds of crime and fundamental principle is that,,,

Government has exclusive right over the proceeds of crime and therefore the said amendment of 2016 SARFAESI Act & Recovery of Debts,,,

and Bankruptcy Act in 2016 will not help the defendants.,,,

Further PMLA law has been made under International Obligation pursuant to the United Nation Genral Assembly resolution and,,,

therefore it will prevail over other laws. The 3 Member Bench of Honâ€ble Supreme Court overruling the two Member Bench decision of,,,

Honâ€ble Supreme Court in 2014 in KSL and Industries Limited V/s Arihant Threads Ltd. & Ors. in Civil appeal no. 5225 of 2008 has held,,,

on 27.10.2017 that to decide whether former law or later law will prevail, the intention and purpose of the Act will have to been seen. On",,,

these facts it is held that PMLA law will prevail over SARFAESI Act and DRT Act. In addition these Acts are of earlier date and amendment,,,

in later date will not make the act itself as of 2016.,,,

And in para 61 he has held that:-,,,

I have gone through the O.C. along with relied upon documents, PAO, statements recorded under section 50 of the PMLA, investigation",,,

conducted, submission of complaint & defendants and hold that Prima facie case for confirmation of PAO is make out as apparently",,,

properties under attachment are involved in money laundering and defendants are in possession of proceeds of crime which include not,,,

only the proceeds of crime but also value thereof. PAO is accordingly confirmed considering over all facts.,,,

Nowhere, in the impugned order, the Adjudicating Authority has dealt with the aforesaid two properties that how these two properties which were",,,

acquired in the year 2003 are out of proceeds of crime. Further he has not taken into consideration nor discussed the judgments and order by three,,,

members bench of this Tribunal to which we were part of it passed on 14.07.2017 in the group of matters i.e., State Bank of India & Others vs. Joint",,,

Director, Directorate of Enforcement, Kolkata in appeal no. FPA-PMLA-1026/KOL/2015 and others and also in the matter of Smt. Nasreen Taj vs.",,,

Deputy Director, Directorate of Enforcement & Ors., Bengalaure, in FPA-PMLA-382/BNG/2012 vide common order dt. 18.09.2017.",,,

The relevant portions of the tribunal order in state Bank of India matter (Supra) are re-produced below:,,,

“7. Coming to the second question, there is no doubt that the 1985 Act is a special Act. Section 32(1) of the said Act reads as follows:",,,

“32. Effect of the Act on other laws.â€(1) The provisions of this Act and of any rules or schemes made there under shall have effect,,,

notwithstanding anything inconsistent therewith contained in any other law except the provisions of the Foreign Exchange Regulation Act,",,,

1973 (46 of 973) and the Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976) for the time being in force or in the Memorandum or",,,

Articles of Association of an industrial company or in any other instrument having effect by virtue of any /law other than this Act.â€​,,,

The effect of this provision is that the said Act will have effect notwithstanding anything inconsistent therewith contained in any other law,,,

except to the provisions of the Foreign Exchange Regulation Act, 1973 and the Urban Land (Ceiling and Regulation) Act, 1976. A similar",,,

non obstante provision is contained in Section 13 of the Special Court Act which reads as follows:,,,

“13. Act to have overriding effect.â€The provisions of this Act shall have effect notwithstanding anything inconsistent therewith,,,

contained in any other law for the time being in force or in any instrument having effect by virtue of any law, other than this Act, or in any",,,

decree or order of any Court, tribunal or other authority.â€​",,,

It is clear that both these Acts are special Acts. This Court has laid down in no uncertain terms that in such an event it is the later Act,,,

which must prevail. The decisions cited in the above context are as follows:,,,

“Maharashtra Tubes Ltd. v. State Industrial & investment Corpn. Of Maharashtra Ltd.; Sarwan Singh v. Kasturi Lal;,,,

AllahabadBankv.Canara Bank and Ram Narain v. Simla Banking & Industrial Co. Ltd.,,,

We may notice that the Special Court had in another case dealt with a similar contention. In Bhoruka Steel Ltd. v. Fairgrowth Financial,,,

Services Ltd. it had been contended that recovery proceedings under the Special Court Act should be stayed in view of the provisions of the,,,

1985 Act. Rejecting this connection, the Special Court had come to the conclusion that the Special Court Act being a later enactment would",,,

prevail. The headnote which brings out succinctly the ration of the said decision is as follows:,,,

“Where there are two special statutes which contain non obstante clauses the later statute must prevail. This is because at the time of,,,

enactment of the later statute, the Legislature was aware of the earlier legislation and its non obstante clause. If the Legislature still confers",,,

the later enactment with a non obstante clause it means that the Legislature wanted that enactment to prevail. If the Legislature does not,,,

want the later enactment to prevail then it could and would provide in the later enactment that the provisions of the earlier enactment,,,

continue to apply.,,,

The Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992, provides in Section 13. that its provisions are to",,,

prevail over any other Act. Being a later enactment, it would prevail over the Sick Industrial Companies (Special Provisions) Act, 1985. Had",,,

the Legislature wanted to exclude the provisions of the Sick Companies Act from the ambit of the said Act, the Legislature would have",,,

specifically so provided. The fact that the Legislature did not specifically so provide necessarily means that the Legislature intended that the,,,

provisions of the said Act were to prevail even over the provisions of the Sick Companies Act.,,,

Under Section 3 of the 1992 Act, all properly of notified persons is to stand attached. Under Section 3(4), it is only the Special Court which",,,

can give directions to the Custodian in respect of property of the notified party. Similarly, under Section 11(1), the Special Court can give",,,

directions regarding property of a notified party. Under Section 11(2), the Special Court is to distribute the assets of the notified party in",,,

the manner set out thereunder. Monies payable to the notified parties are assets of the notified party and are, therefore, assets which stand",,,

attached. These are assets which have to be collected by the Special Court for the purposes of distribution under Section 11(2). The,,,

distribution can only take place provided the assets are first collected. The whole aim of these provisions is to ensure that monies which are,,,

siphoned off from hanks and financial institutions into private pockets are returned to the banks and financial institutions. The time and,,,

manner of distribution is to be decided by the Special Court only. Under Section 22 of the 1985 Act, recovery proceedings can only be with",,,

the consent of the Board for Industrial and Financial Reconstruction or the appellate authority under that Act. The Legislature being aware,,,

of the provisions of Section 22 under the 1985 Act still empowered only the Special Court under the 1992 Act of the 1992 Act to give,,,

directions to recover and to distribute the assets of the notified persons in the manner set down under Section 11 (2) of the 1992 Act. This,,,

can only mean that the Legislature wanted the provisions of Section 11(2) of the 1992 Act to prevail over the provisions of any other law,,,

including those of the Sick Industrial Companies (Special Provisions) Act, 1985.",,,

It is a settled rule of interpretation that if one construction leads to a conflict, whereas on another construction, two Acts can he",,,

harmoniously constructed then the latter must be adopted. If an interpretation is given that the Sick Industrial Companies (Special,,,

Provisions) Acy 1985, is to prevail then there would be a clear conflict. However, there would be no conflict if it is held that the 1992 Act is",,,

to prevail. On such an interpretation the objects of both would be fulfilled and there would be no conflict. It is clear that the Legislature,,,

intended that public monies should be recovered first even from sick companies. Provided the sick company was in a position to first pay,,,

back the public money, there would be no difficulty in reconstruction. The Board for Industrial and Financial Reconstruction whilst",,,

considering a .scheme for reconstruction has to keep in mind the fact that it is to be paid off or directed by the Special Court. The Special,,,

Court can, if it is convinced, grant time or installments.",,,

There can, therefore, be no stay of any proceedings for recovery against a sick company so far as the Special Court under the 1992 Act is",,,

concerned.""",,,

We are in agreement with the aforesaid decision of the case, more so when we find that whenever the legislature wishes to do so it",,,

makes appropriate provisions in the Act in that behalf. Mr Shiraz Rustomjee has drawn our attention to Section 34 of the Recovery of Debts,,,

Due to Banks and Financial Institutions Act, 1993 wherein after giving an overriding effect to the 1993 Act it is specifically provided that",,,

the said Act will be in addition to and not in derogation of a number of other Acts including the 198.5 Act. Similarly under Section 32 of the,,,

1985 Act the applicability of the Foreign Exchange Regulation Act and the Urban Land (Ceiling and Regulation) Act is not excluded. It is,,,

clear that in the instant case there was no intention of the legislature to permit the 1985 Act to apply, notwithstanding the fact that",,,

proceedings in respect of a company may be going on before the BIFR. The 1992 Act is to have an overriding effect notwithstanding any,,,

provision to the contrary in another Act.â€​,,,

The similar view was taken by the Bombay High Court in the case of Bhoruka Steel Ltd. Vs. Fairgrowth Financial Services Ltd. The judgment,,,

rendered on 09.02.2016 reported in 1997 (89) company cases 547 (BOM) para 15 of the said judgment read as under:,,,

To be noted that in both the judgments, relied upon by counsel, the Supreme Court has held that generally where there are two special",,,

statues, which contain non-obstante clauses, the later statute must prevail. This is because at the time of enactment of the later statute, the",,,

Legislature was aware of the earlier legislation and its non-obstante clause. If the Legislature still confers the later enactment with a non-,,,

obstante clause it means that the Legislature wanted that enactment to prevail. If the Legislature does not want the later enactment to prevail,,,

then it could and would provide in the later enactment that the provisions of the earlier enactment continue to apply. In the present case, the",,,

said Act is later. The said Act provides that its provisions are to prevail over any other Act. This would include the Sick Companies Act. If,,,

the legislature wanted to provide otherwise, they would have specifically so provided.â€​",,,

Recently, the Parliament has amended the twin legislations viz. (i) the SARFAESI Act, 2002 and (ii) the DRT Act, 1993(after amendment titled as",,,

the Recovery of Debts and Bankruptcy Act, 1993) by the Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous",,,

Provisions (Amendment) Act, 2016 and its provisions have been given effect from 01.09.2016.",,,

The amended provisions give overriding effect over any other law and priority to the secured condition for the time being in force including the,,,

provisions of PMLA in so far as recovery of the loan by the secured creditors is concerned.,,,

The amended provisions are reproduced as under:,,,

(i) Section 26E of the SARFAESI Act, 2002 :",,,

“26E. Priority to secured creditors â€" Notwithstanding anything contained in any other law for the time being in force, after the",,,

registration of security interest, the debts due to any secured creditor shall be paid in priority over all other debts and all revenues, taxes,",,,

cesses and other rates payable to the Central Government or State Government or local authority.,,,

Explanation : For the purposes of this section, it is hereby clarified that on or after the commencement of the Insolvency and Bankruptcy",,,

Code, 2016 (31 of 2016), in cases where insolvency or bankruptcy proceedings are pending in respect of secured assets of the borrower,",,,

priority to secured creditors in payment of debt shall be subject to the provisions of that Code.â€​,,,

(ii) Section 31B of the Recovery of Debts and Bankruptcy Act, 1993 :",,,

31B. Priority to secured creditors â€" Notwithstanding anything contained in any other law for the time being in force, the rights of secured",,,

creditors to realise secured debts due and payable to them by sale of assets over which security interest is created, shall have priority and",,,

shall be paid in priority over all other debts and Government dues including revenues, taxes, cesses and other rates due to the Central",,,

Government, State Government or local authority.",,,

Explanation : For the purposes of this section, it is hereby clarified that on or after the commencement of the Insolvency and Bankruptcy",,,

Code, 2016 (31 of 2016), in cases where insolvency or bankruptcy proceedings are pending in respect of secured assets of the borrower,",,,

priority to secured creditors in payment of debt shall be subject to the provisions of that Code.â€​,,,

In Section 2 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 after the words ""the date of the application"",",,,

and includes any liability towards debt securities which remains unpaid in full or part after notice of ninety days served upon the borrower",,,

by the debenture trustee or any other authority in whose favour security interest is created for the benefit of holders of debt securities or;""",,,

is added which makes the said amendment or the 1993 Act applicable to all the debts which remains unpaid.,,,

Thus, it is very clear from above that the secured creditor, get a priority over the rights of Central or State Government or any other",,,

Local Authority. The amendment has been introduced to facilitate the rights of the secured creditors which are being hampered by way of,,,

attachments of properties, belonging to the financial institutions/secured creditors, done by/in favour of the government institutions.",,,

The Full Bench of the Madras High Court while acknowledging the amount of losses suffered by the Banks and while approving the,,,

latest amended Section 31B of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 held in the case “The Assistant",,,

Commissioner (CT), Anna Salai-III Assessment Circle Vs. The Indian Overseas bank and Ors.â€​ that “",,,

“There is, thus, no doubt that the rights of a secured creditor to realise secured debts due and payable by sale of assets over which",,,

security interest is created, would have priority over all debts and Government dues including revenues, taxes, cesses and rates due to the",,,

Central Government, State Government or Local Authority. This section introduced in the Central Act is with ''notwithstanding'' clause and",,,

has come into force from 01.09.2016. Further it was also held that the law having now come into force, naturally it would govern the rights",,,

of the parties in respect of even a lis pending.â€​,,,

The Assistant Commissioner (CT) Vs. The Indian Overseas Bank, Madras High Court, WP No. 2675 of 2011 (Full Bench)",,,

“2 We are of the view that if there was at all any doubt, the same stands resolved by view of the Enforcement of Security Interest and",,,

Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Act, 2016, Section 41 of the same seeking to introduce Section 31B in",,,

the Principle Act, Which reads as under:-â€​",,,

31B. Notwithstanding anything contained in any other law for the time being in force, the rights of secured creditors to realize secured",,,

debts due and payable to them by sale of assets over which security interest is created, shall have priority and shall be paid in priority over",,,

all other debts and Government dues including revenues, taxes, cesses and rates due to the Central Government, State Government or local",,,

authority.,,,

Explanation. â€" for the purposes of this section, it is hereby clarified that on or after the commencement of the Insolvency and Bankruptcy",,,

Code, 2016, in cases where insolvency or bankruptcy proceedings are pending in respect of secured assets of the borrower, priority to",,,

secured creditors in payment of debt shall be subject to the provisions of that Code.â€​,,,

“3 There is, thus, no doubt that the rights of a secured creditor to realize secured debts due and payable by sale of assets over which",,,

security interest is created, would have priority over all debts and Government dues including revenues, taxes, cesses and rates due to the",,,

Central Government, State Government or Local Authority. This section introduced in the Central Act is with “notwithstanding†clause",,,

and has come into force from 01.09.2016â€​,,,

“4 The law having now come into force, naturally it would govern the rights of the parties in respect of even a lis pending.â€​",,,

“5 The aforesaid would, thus, answer question (a) in favour of the financial institution, which is a secured creditor having the benefit of",,,

the mortgaged property.â€​,,,

In another Madras High Court judgment in the case of “Dr. V. M. Ganesan vs. The Joint Director, Directorate of Enforcement†has",,,

explained the grievances faced by the financial institutions while holding that,,,

“For instance, if LIC Housing Finance Limited, which has advanced money to the petitioner in the first writ petition and which",,,

consequently has a right over the property, is able to satisfy the Adjudicating Authority that the money advanced by them for the purchase",,,

of the property cannot be taken to be the proceeds of crime, then, the Adjudicating Authority is obliged to record a finding to that effect",,,

and to allow the provisional order of attachment to lapse. Otherwise, a financial institution will be seriously prejudiced. I do not think that",,,

the Directorate of Enforcement or the Adjudicating Authority would expect every financial institution to check up whether the contribution,,,

made by the borrowers towards their share of the sale consideration was lawfully earned or represent the proceeds of crime. Today, if the",,,

Adjudicating Authority confirms the provisional order of attachment and the property vests with the Central Government, LIC Housing",,,

Finance Limited will also have to undergo dialysis, due to the illegal kidney trade that the petitioner in the writ petition is alleged to have",,,

indulged in. This cannot be purport of the Act.â€​,,,

In a case contested by one of the branches of the Appellant Bank, the High Court of Madras “State Bank of India Vs. The Assistant",,,

Commissioner, Commercial Tax, Puraswalkam Assistant Circle and Ors.â€, while upholding the Amendment Act, 2016 to Section 26E of the",,,

SARFAESI Act and reaffirming the view of the Full Bench of the same court in The Assistant Commissioner (CT), Anna Salai-III Assessment",,,

Circle (supra) lifted the attachment entry and held that-,,,

“In other words, not only should the amendment apply to pending lis, but the declaration that the right of a secured creditor to realise",,,

the secured debts, would have priority over all debts, which would include, Government dues including revenues, taxes, etc., should hold",,,

good qua 2002 Act as well.â€​,,,

B. RAMA RAJU V. UOI AND ORS. Reported in (2011) 164 company case 149(AP)(D Bw)ho has dealt with the aspect of bonafide,,,

acquisition of property in para 103. The same read as under:-,,,

“103. Since proceeds of crime is defined to include the value of any property derived or obtained directly or indirectly as a result of,,,

criminal activity relating to a scheduled offence, where a person satisfies the adjudicating authority by relevant material and evidence",,,

having a probative value that his acquisition is bona fide, legitimate and for fair market value paid therefor, the adjudicating authority must",,,

carefully consider the material and evidence on record (including the Reply furnished by a noticee in response to a notice issue under,,,

Section 8(1) and the material or evidence furnished along therewith to establish his earnings, assets or means to justify the bona fides in the",,,

acquisition of the property); and if satisfied as to the bona fide acquisition of the property, relieve such property from provisional",,,

attachment by declining to pass an order of confirmation of the provisional attachment; either in respect of the whole or such part of the,,,

property provisionally attached in respect whereof bona fide acquisition by a person is established, at the stage of the section 8(2)",,,

process…â€​,,,

The Supreme Court in (2010)8 Supreme Court Cases 110 (Before G.S. Singhvi and A.K. Ganguly, JJ) in the case of United Bank of",,,

India V/s. Satyawati Tondon and Ors. In paras no. 6, 55 & 56 has held as under:-",,,

To put it differently, the DRT Act has not only brought into existence special procedural mechanism for speedy recovery of dues of banks",,,

and financial institutions, but also made provision for ensuring that defaulting borrowers are not able to invoke the jurisdiction of the civil",,,

courts for frustrating the proceedings initiated by the banks and other financial institutions.,,,

It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability",,,

of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have,,,

serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High,,,

Courts will exercise their discretion in such matters with greater caution, care and circumspection.",,,

Insofar as this case is concerned, we are convinced that the High Court was not at all justified in injuncting the appellant from taking",,,

action in furtherance of notice issued under Section 13(4) of the Act. In the result, the appeal is allowed and the impugned order is set",,,

aside. Since the respondent has not appeared to contest the appeal, the costs are made easy.â€​",,,

In the subsequent changes in law and amendment in the another Special Act i.e. SARFAESI Act, 2002 the decisions referred by Mr. Matta in",,,

the case of Solidaire (Supra) and Bhoruka Steel (Supra) does not help the case of the respondent no. 1 because the effect of overrding the,,,

PMLA looses its validity once the amendment is made which even has been interpreted subsequently by the Full-Bench of the Chennai High,,,

Court in the case of Assistant Commissioner CT (Supra) and other decision in the nature of the facts in the present matter.,,,

It is also a matter of fact that after passing the impugned order the borrowers have also settled the loan amount with the complainant,,,

â€" i.e. Union of India in order to pay the remaining out-standing amount. The undertaking in this regard is recorded in Court. It is written,,,

agreement and the statement of the parties were recorded. Counsel for the borrowers has also informed us that his client also intent to pay,,,

the remaining out-standing amount to the State Bank of India in order to clear their liabilities once the attached properties are sold and,,,

even otherwise.,,,

Copy of the settlement of the borrowers and the complainant Bank of India was filed before us. As far as the schedule offence is concerned,",,,

we do not wish to make any comment. But we can only observe that in case of settlement, joint petition for quashing of FIR in the High",,,

Court u/s 482 Cr. P.C. could be filed.,,,

It is not denied on behalf of department that these provisional attachment was made, the proceedings of recovery of amount were",,,

pending before the DRT for recovery against the borrowers and for sum of the properties, possession were with the bank. The mortgaged",,,

deeds are also not disputed or/and validity of the same are not challenged on behalf of ED.,,,

It is settled law that generally when the civil dispute between the parties are settled before the court particularly pertaining to the,,,

recovery of out-standing amount, on joint petition, the High Court while exercising its discretion may quash the criminal petition u/s 482 Cr.",,,

P.C. at the joint request of the parties.,,,

Three Judge Bench in Narendra Lal Jain & Ors., (supra) held that during the investigation pertaining to the culpability of the accused",,,

in the crime, the concerned bank had instituted suits for recovery of the amount claimed to be due from the respondents and the said suits",,,

were disposed of in terms of the consent decrees. On the basis of the said consent decrees an application for discharge was filed which was,,,

rejected by the trial court but eventually was allowed by the High Court. The charges in the matter were framed under Section 120- B/420,,,

IPC by the learned trial Judge against the private parties. As far as bank officials are concerned, charges were framed under different",,,

provisions of the Prevention of Corruption of Act, 1988. Being dissatisfied with the said order,, the CBI had preferred an appeal by",,,

obtaining special leave and in that context the court observed that the accused respondent had been charged under Section 120-B/420 IPC,,,

and the civil liability of the respondent to pay the amount had already been settled and further there was no grievance on the part of the,,,

bank. Taking note of the fact that offence under Section 420 of IPC is compoundable and Section 120-B is not compoundable, the Court",,,

eventually opined thus:-,,,

“11. In the present case, having regard to the fact that the liability to make good the monetary loss suffered by the bank had been",,,

mutually settled between the parties and the accused had accepted the liability in this regard, the High Court had thought it fit to invoke its",,,

power under Section 482 Cr.P.C. We do not see how such exercise of power can be faulted or held to be erroneous. Section 482 of the,,,

Code inheres in the High Court the power to make such order as may be considered necessary to, inter alia, prevent the abuse of the",,,

process of law or to serve the ends of justice. While it will be wholly unnecessary to revert or refer to the settled position in law with regard,,,

to the contours of the power available under Section 482 CR.P.C.it must be remembered that continuance of a criminal proceeding which is,,,

likely to become oppressive or may partake the character of a lame prosecution would be good ground to invoke the extraordinary power,,,

under Section 482 Cr. P.C.,,,

In Sanjay Bhandari V/s. CBI, Crl. M.C. M.C. 5798/2014, Delhi High Court, dated 29.06.2015",,,

“69….. By consent the parties have settled all disputes in the recovery suit, the consent decree of DRT stood to be disposed off as duly",,,

satisfied. There is hence no force in the submission of respondents that the complainant bank has not exonerated the petitioners, first being",,,

the Civil Procedure Code, and the second being the OTS Scheme of the Reserve Bank of India, which the petitioners have extensively",,,

referred to in the original petition. The provisions of OTS Scheme prevent the complainant bank from entering into any compromise or,,,

settlement under the said OTS Scheme in the cases of willful default, fraud and malfeasance. The complainant bank in choosing to enter into",,,

such consent terms under the provisions of OTS Scheme has not only exonerated the petitioners, but for all intents and purposes given up",,,

the perusal of the complaint and having no grievance against them in any other proceeding whether civil or criminal on the same set of,,,

issues.â€​,,,

“70. There is no doubt that the trial has been proceeding for offences for the last about 20 years ago. The dispute between the petitioner,,,

and complainant Bank 33 years old. A long time has in fact been elapsed since the alleged commission of offences. Still the trial continues.,,,

The present petition is maintainable as the same has been filed also on additional grounds and circumstances. No useful purpose would be,,,

served if such oppressive trial may continue for many more years. Thus, ends of justice are served by quashing such a proceeding, as the",,,

parties cannot be allowed to go through the rigmarole of criminal prosecution for long numbers of years in a matter, it is doubtful in the",,,

mind of the Court in whose favour it would be decided.â€​,,,

“71. In view of above mentioned reasons, this Court is inclined to quash the proceedings pending against the petitioners, arising out of",,,

R.C. No. 4A/94/SIU(X) dated 23rd May, 1994, titled “CBI vs. N. Bhojraj Shetty & Ors.â€, being C.C. No.65/11, pending in the Court of",,,

Spl. Judge (CBI), Tis Hazari Courts, Delhi.â€​ The said decision has been upheld by the Honâ€​ble Supreme Court.",,,

In the present case, it is undisputed facts that the attached property were purchased much prior to the period when the facility of loan",,,

sanctioned to the borrowers. The banks while rendering the facilities were boanfide parties. It is not the case of the respondent that the,,,

attached properties were purchased after the loan was obtained. The mortgaged of the properties were done as bonafide purposes. None of,,,

the bank is involved in the schedule offence. No PMLA proceedings are pending except the complainant bank was arrayed as Column;-11,,,

at the time of framing charges. Union Bank of India has not granted sanction against its employee to proceed against him in criminal,,,

complaint. There is no criminal complaint under the schedule offence and PMLA is pending against the two banks. In case of failure on the,,,

part of borrowers to comply with the terms of settlement, the contempt proceedings are maintainable in the Court where the settlement was",,,

recorded.,,,

In view of the entire gamut of the dispute, we are of the considered opinion that the conduct of the banks are always bonafide. Both",,,

banks are innocent parties. They were legally entitled to inform the Adjudicating Authority about their innocence and they rightly did so but,,,

their contention was rejected as appeared from the impugned order.,,,

This Tribunal in the case of IPRS in appeal no. FPA-PMLA-1302/MUM/2016 decided on 22.06.2017 had dealt with the similar issue as,,,

to whether the innocent party whose immovable properties are attached by the ED can approach the Adjudicating Authority for release of,,,

the same in para no. 55 to 60 the same read as under:-,,,

“55. Whether innocent party whose properties i.e. movable or immovable are attached can approach the Adjudicating Authority for,,,

release of attached property.,,,

The Scheme of Prevention of Money Laundering Act clearly provides the mechanism whereby the innocent parties can approach the,,,

Adjudicating Authority for the purposes of release of properties which have been attached in terms of the provisions of Section 5 of the Act.,,,

This can be seen by reading Section 8(1) and the proviso to Section 8(2) of the Act whereby Adjudicating Authority has to rule whether all,,,

or any of the properties referred to in the notice are involved in money laundering or not.,,,

“8. Adjudication.- (1) On receipt of a complaint under sub-section (5) of section 5, or applications made under sub-section (4) of section",,,

17 or under subsection (10) of section 18, if the Adjudicating Authority has reason to believe that any person has committed an offence",,,

under section 3 or is in possession of proceeds of crime, he may serve a notice of not less than thirty days on such person calling upon him to",,,

indicate the sources of his income, earning or assets, out of which or by means of which he has acquired the property attached under sub-",,,

section (1) of section 5, or, seized or frozen under section 17 or section 18, the evidence on which he relies and other relevant information",,,

and particulars, and to show cause why all or any of such properties should not be declared to be the properties involved in money-",,,

laundering and confiscated by the Central Government: Provided that where a notice under this sub-section specifies any property as being,,,

held by a person on behalf of any other person, a copy of such notice shall also be served upon such other person: Provided further that",,,

where such property is held jointly by more than one person, such notice shall be served to all persons holding such property.",,,

(2) The Adjudicating Authority shall, after- (a) considering the reply, if any, to the notice issued under subsection (1); (b) hearing the",,,

aggrieved person and the Director or any other officer authorised by him in this behalf, and (c)taking into account all relevant materials",,,

placed on record before him, by an order, record a finding whether all or any of the properties referred to in the notice issued under sub-",,,

section (1) are involved in money-laundering: Provided that if the property is claimed by a person, other than a person to whom the notice",,,

had been issued, such person shall also be given an opportunity of being heard to prove that the property is not involved in money-",,,

laundering, section 58 B or sub-section (2 A) of section 60 by the Adjudicating Authority (4) Where the provisional order of attach""",,,

There are judicial pronouncements whereby it has been laid down that the innocent parties can approach the Adjudicating Authority for,,,

release of property by showing their bonafides in their dealings with the property. In the case of Sushil Kumar Katiyar (Appellants) Vs UOI,,,

and Ors. (Respondents) MANU/UP/0777/2016 decided on 10.05.2016 by Allahabad High Court, it has been observed by the Ld. Single",,,

Judge after noticing the judgment of Karnataka High Court that the element of knowingly or mens rea have been provided under the Act so,,,

that the aspect of implicating any innocent person can be ruled out. Relevant para 26 of judgment is reproduced below:-,,,

“26. Thus, upon consideration of the law laid down by the Hon'ble Karnataka High Court, it is clear that the amendment incorporated in",,,

the Money Laundering Act was not held unconstitutional and ultra virus, but it was observed by the Karnataka High Court that the property",,,

of a person can be attached without there being any prosecution for the offence of Money Laundering, but so far as the prosecution of a",,,

person for the offence of money laundering is concerned, the proceedings under section 3 of the PML Act can be initiated only in case the",,,

person is held guilty of receiving proceeds of crime as a result of commission of scheduled offence. The Karnataka High Court has also held,,,

that the complainant in such a case is not required to wait for the result of trial being held for the scheduled offence. A complaint can still be,,,

filed against such person, but if ultimately the person is acquitted of the charge for the scheduled offence, his prosecution under section 3 of",,,

the Act for the offence of Money-Laundering would also come to an end. It has also been kept open by the Karnataka High Court that a,,,

person against whom complaint under section 3 of the PML Act has been filed and he is being prosecuted for the offence of money-,,,

laundering, he can show before the court that he is innocent and has not received any proceeds of crime.â€​",,,

It is clear that innocent person can approach the Adjudicating Authority of any competent court to demonstrate his innocence that he has,,,

not received any proceeds of crime. The consequence of this is that while considering whether all or any of the properties provided under,,,

notice issued u/S 8(1) are involved in money laundering, the Adjudicating Authority can take into consideration the plea of innocence",,,

raised by any person and also the fact as to whether the property which has been attached has any nexus whatsoever with that of money,,,

laundering or not if the person before the Tribunal/ Adjudicating Authority is able to demonstrate that he neither directly nor indirectly has,,,

attempted to indulge nor with knowledge or ever assisted any process or activity in connection with proceeds or crime and the question of,,,

his involvement does not arise as he is third party, then the Tribunal/ Adjudicating Authority can consider the said plea depending upon",,,

whether there exist bona fide in the said plea or not and proceed to adjudicate the plea of innocence of the said party.,,,

This is due to the reason that Section 8 allows the Adjudicating Authority to only retain the properties which are involved in money,,,

laundering which means as to whether properties attached are involved in money laundering or not is a pre-condition prior to confirming,,,

or attachment by Adjudicating Authority. Therefore, at that time, if the plea is raised that the party whose property is attached is innocent or",,,

is without knowledge of any such transaction with respect to money laundering, then the Tribunal can consider the said plea and proceed to",,,

release the said property out of the properties by holding that the said property is not involved in money laundering.,,,

For the purposes of determining whether the property is involved in money laundering, the Court may consider the ingredients of",,,

Section 3 which define offence of money laundering. The aspect of knowledge or involvement has been discussed by Ld. Single Judge of,,,

Gujarat High Court in the case of Jafar Mohammed Hasanfatta and Ors (Appellants) Vs Deputy Director and Ors. (Respondents),,,

MANU/GJ/0219/2017 wherein Ld Single Judge has observed as under:-,,,

“37. A holistic reading of this definition of 'proceeds of crime' and the penal provision under Section 3 of PMLA, which uses conjunctive",,,

'and', makes it luminous that any persons concerned in any process or activity connected with such ""proceeds of crime"" relating to a",,,

scheduled offence"" including its concealment, possession, acquisition or use can be guilty of money laundering, only if both of the two",,,

prerequisites are satisfied i.e.-,,,

“(i) Firstly, if he-",,,

(a) directly or indirectly 'attempts' to indulge,",,,

(b) “knowinglyâ€​ either assists or is a party, or",,,

(c) is “actually involvedâ€​ in such activity; and,,,

(ii) Secondly, if he also projects or claims it as untainted property;""",,,

The first of the two pre-requisite to attract Section 3 of PMLA shall thus satisfy any of the following necessary ingredients-,,,

“A. RE: DIRECT OR INDIRECT ATTEMPT:,,,

In State of Maharashtra v. Mohd.Yakub, MANU/SC/0239/1980 : (1980) 3 SCC 57, the Hon'ble Supreme Court observed that-",,,

“13. Well then, what is an “attempt� ...In sum, a person commits the offence of ""attempt to commit a particular offence"" when (i)",,,

he intends to commit that particular offence and (ii) he, having made preparations and with the intention to commit the offence, does an act",,,

towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the,,,

course of committing that offence.""",,,

Thus, an “attempt to indulge†would necessarily require not only a positive ""intention"" to commit the offence, but also preparation for",,,

the same coupled with doing of an act towards commission of such offence with such intention to commit the offence. Respondent failed to,,,

produce any material or circumstantial evidence whatsoever, oral or documentary, to show any such 'intention' and 'attempt' on the part of",,,

any of the petitioners.,,,

B. RE: KNOWINGLY ASSISTS OR KNOWINGLY IS A PARTY:,,,

In Joti Parshad v. State of Haryana, MANU/SC/0161/1993 : 1993 Supp (2) SCC 497 the Hon'ble Supreme Court has held as follows-",,,

“5. Under the Indian penal law, guilt in respect of almost all the offences is fastened either on the ground of ""intention"" or ""knowledge""",,,

or ""reason to believe"". We are now concerned with the expressions “knowledge†and ""reason to believe"". “Knowledge†is an",,,

awareness on the part of the person concerned indicating his state of mind. “Reason to believe†is another facet of the state of mind.,,,

Reason to believe"" is not the same thing as “suspicion†or “doubt†and mere seeing also cannot be equated to believing.",,,

“Reason to believe†is a higher level of state of mind. Likewise “knowledge†will be slightly on a higher plane than “reason to,,,

believeâ€. A person can be supposed to know where there is a direct appeal to his senses and a person is presumed to have a reason to,,,

believe if he has sufficient cause to believe the same.â€​,,,

The same test therefore applies in the instant case where there is absolutely no material or circumstantial evidence whatsoever, oral or",,,

documentary, to show that any of the petitioners, 'Knowingly', assisted or was a party to, any offence.",,,

C. Actually involved:,,,

Actually involved would mean actually involved into any process or activity connected with the proceeds of crime and thus scheduled,,,

offence, including its concealment, possession, acquisition or use. There is absolutely no material or circumstantial evidence whatsoever,",,,

oral or documentary, to substantiate any such allegation qua the petitioners,",,,

D. Neither any of the petitioners is arraigned as accused in the 'Scheduled Offences' punishable under Indian Penal Code for direct or,,,

indirect involvement, abetment, conspiracy or common intention, nor is any such case made out even on prima facie basis against any of",,,

them.""",,,

The second of the two pre-requisite to attract Section 3 of PMLA would be satisfied only if the person also projects or claims proceeds of,,,

crime as untainted property. For making such claim or to project 'proceeds of crime' as untainted, the knowledge of tainted nature i.e. the",,,

property being 'proceeds of crime' derived or obtained, directly or indirectly, as a result of criminal activity relating to a scheduled offence,",,,

would be utmost necessary, which however is lacking in the instant case.""",,,

These are four ingredients which are determinative factors on the basis of which it can be said that whether any person or any property,,,

is involved in money laundering or not. If there is no direct / indirect involvement of any person or property with the proceeds of the crime,,,

nor there is any aspect of knowledge in any person with respect to involvement or assistance nor the said person is party to the said,,,

transaction, then it cannot be said that the said person is connected with any activity or process with the proceeds of the crime. The same",,,

principle should be applied while judging the involvement of any property of any person in money laundering. This is due to the reason that,,,

if the property has no direct involvement in the proceeds of the crime and has passed on hands to the number of purchasers which includes,,,

the bona fide purchaser without notice, the said purchaser who is not having any knowledge about the involvement of the said property",,,

with the proceeds of the crime nor being the participant in the said transaction ever, cannot be penalized for no fault of his. Therefore, it",,,

cannot be the Scheme of the Act whereby bona fide person without having any direct/ indirect involvement in the proceeds of the crime or its,,,

dealings can be made to suffer by mere attachment of the property at the initial stage and later on its confirmation on the basis of mere,,,

suspicion when the element of mens rea or knowledge is missing.,,,

Similar principle has been laid down by Chennai High Court in the case of C. Chellamuthu (Appellants) Vs The Deputy Director,",,,

Prevention of Money Laundering Act, Directorate of Enforcement (Respondent) MANU/TN/4087/2015 decided on 14.10.2015, relevant",,,

portion of which are reproduced below:-,,,

“ 20. The said sections read as follows:--,,,

“23. Presumption in inter-connected transactions Where money-laundering involves two or more inter-connected transactions and one or,,,

more such transactions is or are proved to be involved in money-laundering, then for the purposes of adjudication or confiscation (under",,,

section 8 or for the trial of the money-laundering offence, it shall unless otherwise proved to the satisfaction of the Adjudicating Authority or",,,

the Special Court), be presumed that the remaining transactions form part of such inter-connected transaction.",,,

Burden of proof,,,

In any proceeding relating to proceeds of crime under this Act,",,,

(a) in the case of a person charged with the offence of money-laundering under Section 3, the Authority or Court shall, unless the contrary is",,,

proved, presume that such proceeds of crime are involved in money-laundering; and",,,

(b) in the case of any other person the Authority or Court, may presume that such proceeds of crime are involved in money-laundering.",,,

In the present case, one G. Srinivasan is accused of having played fraud and obtained a loan of Rs. 15,00,00,000/- by producing bogus",,,

and fabricated documents. From and out of the said amount, the property in question was purchased by him in the names of his Benamies.",,,

One Ayyappan was appointed as their Power Agent. One Gunaseelan purchased the property through the Power Agent Ayyappan. The said,,,

Gunaseelan was examined and his statement was recorded Under Section 50 of the Act. He had stated that he purchased the property for,,,

cultivation. He developed the property but geologist gave opinion that property will not yield proper income. In the circumstances, he sold",,,

the property to appellants. The respondent has not produced any document or material to disprove the statement of Gunaseelan. There is,,,

nothing on record to show that the transaction in favour of the said Gunaseelan, is not genuine. It is not the case of respondent that the said",,,

Gunaseelan is a Benami or employee of G. Srinivasan and that Gunaseelan did not pay any amount as sale consideration or the sale,,,

consideration paid by Gunaseelan was not legitimate money. There is no material to show nexus and link of Gunaseelan with G. Srinivasan,,,

and his Benamies. In the absence of any verification or investigation by respondent with regard to genuineness or otherwise of the purchase,,,

by Gunaseelan; whether he was connected with G. Srinivasan or the sale consideration is legitimate or not the property in the hands of,,,

Gunaseelan cannot be termed as proceeds of crime.,,,

Further, the appellants have given statements under Section 50 of the Act. They have categorically stated that they possess agricultural",,,

lands, cultivate GloriosaSuperba seeds and sell the same and derive considerable income. They have named the persons to whom they have",,,

sold the GloriosaSuperba seeds and produced Bank statements. Some of the Appellants have stated that they sold their lands and borrowed,,,

monies to purchase the property in question. There is nothing on record to show that the respondent had verified these statements.,,,

Especially, the respondent has not verified the Bank statement produced by the Appellants to ascertain the genuineness of the same and",,,

whether the money deposited came from genuine purchasers or from the persons involved in fraud and Money Laundering. The respondent,,,

does not allege that Appellants are Benamies of G. Srinivasan or no sale consideration passed to the vendor.,,,

Considering the materials on record and judgments reported in MANU/MH/1011/2010: 2010 (5)Bom CR 625 [supra] and : [2011] 164,,,

Comp Cas 146(AP) [supra], I hold that appellants have rebutted the presumption that the property in question is proceeds of crime. The",,,

respondent failed to prove any nexus or link of Appellants with G. Srinivasanand his benamies. Once a person proves that his purchase is,,,

genuine and the property in his hand is untainted property, the only course open to the respondent is to attach sale proceeds in the hands of",,,

vendor of the appellants and not the property in the hands of genuine legitimate bona fide purchaser without knowledge.,,,

Before the Adjudicating Authority it was admitted by complainant that appellants had no knowledge that properties in the hands of their,,,

vendor was proceeds of crime. It was also not disputed by complainant that the appellants did not have financial capacity to buy properties.,,,

Paragraphs 21, 22, 23 and 24 of order of Adjudicating Authority is extracted herein for better appreciation.",,,

“21. The CBIBS & FC (BLR) has filed a charge sheet in the court of Spl. Judge for CBI cases Coimbatore, against Sh. Arivarasu, Sh. R.",,,

Manoharan, Sh. R. Selvakumar, Sh. G. Srinivasan, Sh. K. Martha Muthu, Sh. V. InduNesan, Sh. K. Vignesh, Sh. A. Sainthil Kumar, Sh. M.",,,

Ram Krishnan, for the offences punishable under Section 120-B read with 420, 467, 471 IPC and section 13(2) read with 13(1)(d) of PC",,,

Act 1988. The offences punishable under section 120-B, 420, 471 are schedule offence under Section 2(1)(y) of the PMLA and therefore on",,,

of the condition for issuing provisional attachment order is satisfied. The other important point to be determined is whether the properties,,,

attached vide Provisional attachment order are involved in money-laundering. The only defense or explanation raised by Defendants,",,,

particularly Def No. 2 to 8 is that the landed properties attached by the complainant are not proceeds of crime. These properties were,,,

purchased by these defendants without having any knowledge, whatsoever, that these properties were derived or obtained through criminal",,,

activities relating to schedule offence. It has been demonstrated by them that they verified the title deeds relating to the properties and after,,,

due verification of every details entered into the sale transactions as such these are bona fide deals entered by them against proper sale,,,

consideration and the money paid to the seller is also well explained.,,,

Against the above arguments vehemently raised by the defendants, the complainant without disputing that the deals are bona fide",,,

heavily relied on the judgment of the Bombay High Court, dated 05.08.2010 in Mr. Radha Mohan Lakhotia Vs. Deputy Director, PMLA,",,,

Directorate of Enforcement, Mumbai in first appeal No. 527/2010. In this case it held by the Bombay High Court that the property bought",,,

without the knowledge that the same is tainted could be subjected to Provisional Attachment Order.,,,

In the instant case the only point to be decided is whether the properties bought by any person against clean money and without any,,,

knowledge that properties have been acquired directly or indirectly though scheduled offence could be subject matter of provisional,,,

attachment order.,,,

It is an admitted position that the Defendants (D-2 to D-8) had no knowledge that the properties in the hands of the vendor was proceeds,,,

of crime. They have also verified the papers relating to these properties before the deal. No point has been raised with regard to the,,,

financial capability of these Defendants to buy these properties. However, the Bombay High Court decision in Radha Mohan Lakhotia has",,,

been pressed into service to make out a plea that the properties could be attached in such circumstances under the PMLA.""",,,

Provisional attachment was sought to be continued only based on the judgment of Bombay High Court in Radha Mohan Lakhotia's case.,,,

A reading of paragraphs 21 to 24 clearly reveals that both the Adjudicating Authority as well as Appellate Authority failed to properly,,,

appreciate the facts and findings in Radha Mohan lakhotia's case. In that case, the Department had placed substantial and acceptable facts",,,

to prove that the property in the hands of third party was proceeds of crime. It is pertinent to note that in Mr. Radha Mohan Lokatia's case,",,,

Department had proved the nexus and link between the person possessing the property and person accused of having committed an offence.,,,

All the persons involved in that case were close relatives.,,,

In the present case, the respondent failed to prove that the appellants did not have sufficient financial capacity to buy the property or",,,

that the money paid by them as sale consideration was not legitimate money derived by agricultural activities. No material was produced to,,,

show that the appellants are close relatives of person, who involved in criminal activities and the person, who sent monies to purchase the",,,

property did not possess financial capacity to provide such huge amounts and that they are not genuine purchasers of agricultural products,,,

of appellants. The respondent has not made any such investigation and has not produced any such material. Further, the Appellate",,,

Authority in fact considered the additional documents produced before it, but rejected the same on the ground that Appellants have not given",,,

any valid reasons for not filing the same before the Adjudicating Authority. Having considered the Additional documents, the appellate",,,

authority failed to give any finding on merits after verifying with the concerned Bank.""",,,

The Respondent no. 1 has heavily relied on the judgment of the Hon'ble Supreme Court passed in the matter of KSL & Industries Ltd. vs. Arihant,,,

Threades Ltd. & Others passed in the matter of Civil Appeal no. 5225 of 2008. The Hon'ble Three judges Bench of Hon'ble Supreme Court has,,,

discussed various decision of the hon'ble Supreme Court, the RDDB Act and SICA. It is important to refer/quote the relevant paras of the Judgment",,,

delivered by the Hon'ble Supreme court in KSL & Industries Ltd. vs. Arihant Threaders Ltd. & Ors. (supra).,,,

“47. In a subsequent decision in Allahabad Bank Vs. Canara Bank, this Court held that with reference to the Companies Act, the RDDB",,,

Act should be considered as a “special law†though both laws could be treated as “special laws†in respect of recovery of dues by,,,

banks and financial institutions. In a later case the question arose in the context of Special Court (Trial of offences Relating to Transactions,,,

in Securities) Act, 1992 and SICA. It was contended that in view of the special provisions contained in SICA no proceedings could have",,,

been initiated under the Special Court Act. The Court observed that though Section 32 of the SICA contained a non-obstante clause, there",,,

was a similar non-obstante clause in Section 13 of the Special Court Act. The Court observed:-,,,

“9… This Court has laid down in no uncertain terms that in such an event it is the later Act which must prevail.â€​,,,

This Court approved the observations of the Special Court to the effect that if the legislature confers a non-obstante clause on a later,,,

enactment, it means that the legislature intends that the later enactment should prevail. Further, it is a settled rule of interpretation that if",,,

one construction leads to a conflict, whereas on another construction two Acts can be harmoniously construed, then the latter must be",,,

adopted.,,,

In view of the observations of this Court in the decisions referred to and relied on by the learned counsel for the parties we find that,",,,

the purpose of the two enactments is entirely different. As observed earlier, the purpose of one is to provide ameliorative measures for",,,

reconstruction of sick companies, and the purpose of the other is to provide for speedy recovery of debts of banks and financial",,,

institutions. Both the Acts are “special†in this sense. However, with reference to the specific purpose of reconstruction of sick",,,

companies, the SICA must be held to be a special law, though it may be considered to be a general law in relation to the recovery of debts.",,,

Whereas, the RDDB Act may be considered to be a special law in relation to the recovery of debts and the SICA may be considered to be a",,,

general law in this regard. For this purpose we rely on the decision in LIC Vs. Vijay Bahadur (supra). Normally the latter of the two would,,,

prevail on the principle that the Legislature was aware that it had enacted the earlier Act and yet chose to enact the subsequent Act with a,,,

non- obstante clause. In this case, however, the express intendment of Parliament in the non-obstante clause of the RDDB Act does not",,,

permit us to take that view. Though the RDDB Act is the later enactment, sub-section (2) of Section 34 specifically provides that the",,,

provisions of the Act or the rules thereunder shall be in addition to, and not in derogation of, the other laws mentioned therein including",,,

SICA.,,,

The term “not in derogation†clearly expresses the intention of Parliament not to detract from or abrogate the provisions of SICA in,,,

any way. This, in effect must mean that Parliament intended the proceedings under SICA for reconstruction of a sick company to go on and",,,

for that purpose further intended that all other proceedings against the company and its properties should be stayed pending the process of,,,

reconstruction. While the term “proceedings†under Section 22 did not originally include the RDDB Act, which was not there in",,,

existence. Section 22 covers proceedings under the RDDB Act.,,,

The purpose of the two Acts is entirely different and where actions under the two laws may seem to be in conflict, Parliament has wisely",,,

preserved the proceedings under the SICA, by specifically providing for sub- section (2), which lays down that the later Act RDDB shall be",,,

in addition to and not in derogation of the SICA.,,,

We might add that this conclusion has been guided by what is considered to be one of the most crucial principles of interpretation viz.,,,

giving effect to the intention of the Legislature. The difficulty arose in this case mainly due to the absence of specific words denoting the,,,

intention of Parliament to cover applications for recovery of debts under the RDDB Act while enacting Section 22 of the SICA. As observed,,,

earlier, the obvious reason for this absence is the fact that the SICA was enacted earlier. It is the duty of this Court to consider SICA, after",,,

the enactment of the RDDB Act to ascertain the true intent and purpose of providing that no proceedings for execution or distraints or suits,,,

shall lie or be proceeded with. Undoubtedly, in the narrower sense an application for recovery of debt can be giving a restricted meaning",,,

i.e. a proceeding which commences on filing and terminates at the judgment. However, there is no need to give such a restricted meaning,",,,

since the true purpose of an application for recovery is to proceed to the logical end of execution and recovery itself, that is by way of",,,

execution and distraint. We thus have no hesitation in coming to the conclusion that Section 22 clearly covers and interdicts such an,,,

application for recovery made under the provisions of the RDB Act. We might remind ourselves of the oft-quoted statement of the principles,,,

of contextual construction laid down by this Court in Reserve Bank of India Versus Peerless General Finance and Investment Co. Ltd. &,,,

Ors.[6], where this Court has observed:-",,,

“33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the,,,

texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual",,,

interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be",,,

read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the",,,

context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words",,,

may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we,,,

must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to",,,

fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be,,,

construed so that every word has a place and everything is in its place.â€​,,,

Moreover, we have found nothing contrary in the intention of the SICA to exclude a recovery application from the purview of Section",,,

22, indeed there could be no reason for such exclusion since the purpose of the provision is to protect the properties of a sick company, so",,,

that they may be dealt with in the best possible way for the purpose of its revival by the BIFR. In State of Punjab Vs. The Okara Grain,,,

Buyers Syndicate Ltd.[7], the Court articulated the importance of preserving the beneficent purpose of the statute and observed:-",,,

“14. …….. We shall therefore proceed to examine the provisions of the Act on the footing that the test for determining whether the,,,

Government is bound by a statute is whether it is expressly named in the provision which it is contended binds it, or whether it “is",,,

manifest that from the terms of the statute, that it was the intention of the legislature that it shall be boundâ€, and that the intention to bind",,,

would be clearly made out if the beneficent purpose of the statute would be wholly frustrated unless the Government were bound.â€​,,,

Having answered the reference, we hold that the provisions of SICA, in particular Section 22, shall prevail over the provision for the",,,

recovery of debts in the RDDB Act. In these circumstances, as already directed by the two-Judge Bench of this Court, the Judgment and",,,

Order dated 23.02.06 of the High Court of Delhi is set aside. As far as the writ petitions are concerned, whether on the ground that Section",,,

22 of the SICA acts as a bar to the recovery proceedings under the RDDB Act or whether the protection of SICA is not available to the,,,

appellant company since the recovery proceedings under the RDDB Act had been concluded, the writ petitions would have to be dismissed",,,

and are accordingly dismissed. The present appeal is allowed.â€​,,,

From the above i.e. the principle enunciated in the judgments discussed by us and the observations made by Hon'ble Supreme Court in the matter,,,

of KSL & Industries ltd. (supra) we do not find any departure. When two special Acts have non-obstante clauses, the later statue will prevail over the",,,

earlier statute. At the same time the aim and object of both the special Acts are to be looked into to decide such issue in the manner and harmonious,,,

construction has to be arrived,,,

In the present case, the SARFAESI Act, RDDB Act and PMLA are special Acts. The SARFAESI Act and RDDB Act are enacted earlier to",,,

PMLA. The RDDB Act and PMLA have non-obstante clause. Recently, the parliament has amended the twin legislations viz. (i) the SARFAESI",,,

Act, 2002 and (ii) the DRT Act, 1993 (after amendment titled as the Recovery of Debts and Bankruptcy Act, 1993) by the Enforcement of Security",,,

Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Act, 2016 and its provisions have been given effect from",,,

01.09.2016. The Parliament in its wisdom has not excluded the application of the amended provisions to the proceedings under PMLA. In other words,",,,

had the Parliament intended to exclude the application of non-obstante clause of SARFAESI Act and RDDB Act to PMLA then it would have done,,,

so expressly as has been specifically prescribed in the amended provisions. It may also be noted here that the judgment of Hon'ble Supreme Court in,,,

the matter of KSL & Industries Ltd (supra) has been delivered in the year 2014 whereas the amendment in aforesaid two Acts have been brought in,,,

the year 2016.,,,

One more important thing to be noted that the Hon'ble Supreme Court in the aforesaid case KSL & Industries Ltd. (supra) matter has held that,,,

the provisions of SICA, in particular section 22, shall prevail over the provisions for the recovery of debts in the RDDB Act because of the fact that",,,

the non-obstante provision of RDDB Act has specifically excluded SICA from its application.,,,

The conflict of non-obstante clause arising in respect of two or more enactments then the same have to be resolved by taking into consideration of,,,

policy underlying the enactment and the language used in them. The Prevention of Money Laundering Act has been enacted for forfeiture of crime,,,

involved in the money laundering which was considered necessary to deprive persons engaged in serious illegal activities and have thereby been,,,

increasing their resources for operating in clandestine manner. The Act was created to forfeit illegal properties and to prevent the money laundering,,,

activities which are threat to financial system of the country and its integrity and sovereignty. Further the question of prevalence of a subsequent,,,

legislation will only come into picture when there is a conflict between the two statutes. The Securitization Act has been enacted for the purpose of,,,

establishing a expeditious system for recovery of debts due to Banks and for matters connected therewith or incidental thereto. It only lays down a,,,

procedure for recovery of debts due to Banks. The Prevention of Money Laundering act vests the statutory authorities with a power to forfeit,,,

proceeds of crime involved in money laundering to the State. There is thus no apparent conflict between the two statues. The two statues operate in,,,

their exclusive fields. The question is only who will have his first claim on any property where the claim of the State concur with the claim of any,,,

other person. In the light of above a harmonious construction has to be arrived that keeping in view the facts of the case vis. a vis the statues involved.,,,

In the present case the aforesaid principle suggest that the amendments carried out in SARFAESI Act and RDDB Act in 2016 will prevail over PML,,,

Act, 2002 because the properties involved in the present appeal were untainted when the same were acquired. Even when the properties were",,,

mortgaged with the appellant Bank the same were not tainted. The allegation of commission money laundering is after the mortgage of the said,,,

properties with the appellant Bank. After the mortgage of the aforesaid properties a legal right has been accrued in favour of the appellant Bank over,,,

the said properties which cannot be taken away in the given facts and circumstance of the case. As far as borrowers are concerned (who are the,,,

accused parties) even we stress that as per law, they must face the trail in the complaint filed against them.",,,

The Respondent has also heavily relied on the judgment or order passed by this Tribunal in the matter of Chief Manager, Syndicate Bank Vs. Dy.",,,

Director, PMLA in Appeal no. FPA-PMLA-A-34/CAL/2009. We have gone through the said order from which it appears that the facts of that",,,

appeal are quite different from the facts of the present appeal. In the said appeal proceeds of crime were used to acquire properties and those,,,

acquired properties were mortgaged with the Bank. Para 2 of the said order of this Tribunal which reflects the brief facts of the case is reproduced,,,

below to clear the cloud:-,,,

Brief facts: M/s Hindustan International, Kolkata proprietor Sh. Gopinath Das operated and maintained current a/c 01000051007 and",,,

03921011000797 with State Bank of India, Overseas Branch, Kolkata (in short SBI) and Oriental Bank of Commerce, Stand Road Branch,",,,

Kolkata (in short OBC) respectively with the intention to defraud the bank and submitted fake and forged documents for export of goods,,,

such as Invoice, Packing List, Quality and Quantify Certificate, SDF Declaration, Undertaking, Origin of Good Certificate, Shipping Bill,",,,

Bill of lading etc. to the bank and god these bills discounted against L/C(s) and obtained an amount of Rs. 12,28,22,463/- and Rs.",,,

1,30,43,433/- from State Bank of India and Rs. 6,76,65,000/- from Oriental Bank of Commerce. The funds which were credited to the above",,,

current accounts, were withdrawn from bank for personal gain of Shri Gopinath Das and companies owned and managed by him. Out of",,,

these funds, Sh. Gopinath Das has acquired several immovable properties as detailed in the impugned order and mortgaged them with",,,

Syndicate Bank, Salt Lake Branch, Kolkata, the present appellant for availing credit facilities to the extent of Rs. 10 crores and got Rs. 4.5",,,

crores fraudulently released from the appellant against fake and forged documents. As the amount of loan given by the appellant was not,,,

repaid the account became Non Performing Asset (NPA) and the appellant proceeded u/s 13 of the Securitization and Reconstruction of,,,

Financial Assets and Enforcement of Security Interest Act, 2002 (in short Securitisation Act) for recovery of its dues and claimed to have",,,

taken possession of the properties on 30.11.2006.,,,

Neither of the aforesaid judgments relied on by the Respondent no. 1 is of any help to their case in the given facts and circumstances of the case.,,,

The facts in the referred cases are not similar.,,,

It is an admitted fact that the properties herein are mortgaged with the appellant Bank. It is also a fact that the mortgaged properties are not,,,

acquired out of any proceeds of crime. It has come on record that the properties mortgaged were acquired prior to the alleged commission of crime.,,,

The relevant sale deed of the mortgaged properties are of 2003 so the date of acquisition is much prior to the date of alleged commission of crime in,,,

the present case.,,,

In the present case the Adjudicating Authority has come to a conclusion at para nos. 61, 63 & 65 of the impugned order that the defendants are in",,,

possession of proceeds of crime and are involved in money laundering. The aforesaid conclusion has not be elucidated by the Ld. Adjudicating,,,

Authority in his order. It appears that the only thing was in his mind that section 71 of PMLA has an overriding effect. The provisions of PMLA shall,,,

have effect and prevail over provisions of any other Act or its provisions. To this we are not in agreement with the Ld. Adjudicating Authority,,,

because of the amendment of 2016 made in SARFAESI Act RDDB Act. The IDBI Bank is the rightful claimants of the said property which are,,,

already in its possession under SARFAESI Act. Even recovery certificate has been issued by DRT.,,,

The Honâ€ble Supreme Court of India in the case ofA ttorney General of India and Ors. (AIR 1994 SC 2179 )while dealing with the matter under,,,

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act has defined the illegally acquired properties and held that such,,,

properties are earned and acquired in ways illegal and corrupt, at the cost of the people and the state, hence these properties must justly go back",,,

where they belong, the state. In the present case as they money belongs to the IDBI Bank it is public money. The IDBI Bank has the right to property",,,

under the Constitution of India. The property of the IDBI Bank cannot be attached or confiscated if there is no illegality in the title of the appellant and,,,

there is no charge of money laundering against the appellant. The mortgaged of property is the transfer under the Transfer of Property Act. Even the,,,

respondent is not denying the fact that the Bank is a victim party who is also innocent and is entitled to recover the loan amount. It is also not disputed,,,

by the respondent that the properties in dispute are mortgaged with Bank and it has to go to Bank ultimately. The only submission of the respondent,,,

that u/s 8(8) of PMLA, the possession be given to Bank after the trail and final outcome of criminal matters against the barrowers. We do not agree",,,

with the argument in this regard in view of amendment in the two statutes. Even otherwise the trail would take number of years. The public money,,,

cannot be stalled otherwise Banking system would be collapsed.,,,

That the definition of “proceeds of crime†as per Section 2(u) of the PML Act comprises of the property which is derived or obtained as a,,,

result of criminal activity. In the present case, both the properties have been purchased by the Respondent Sh. Arun Suri and have been mortgaged",,,

with the IDBI much prior to the date of alleged offence which shows that no proceeds of crime are involved in the acquiring of these properties and,,,

hence the same cannot be attached.,,,

The Ld. Adjudicating Authority has failed to consider that the ED has attached the properties without examining the case of the bank. The,,,

evidence on record suggests that the properties were acquired by the borrowers much before the alleged date of crime. No money disbursed by the,,,

Bank from its loan account, has been invested in acquiring these properties. Furthermore, the Appellant Bank had created charge over the property",,,

prior to the date of the crime. The Bank has already filed the suit for recovery and has also taken the action under SARFAESI Act. The Ld.,,,

Adjudicating Authority failed to appreciate that depriving the Appellant Bank from its funds/property, without any allegations or involvement of the",,,

Bank in the alleged fraud would be legally unjustified.,,,

The properties attached cannot be attached under Section 5 of the PML Act because the properties are not purchased from the alleged proceeds,,,

of crime. As per the provisions of Section 5(1) (c) the primary requirement for the attachment is that the proceeds of crime are likely to be concealed,",,,

transferred or dealt with in any manner. In this case there was absence of such requirement. The said properties are already in the possession of the,,,

Appellant Bank under the SARFAESI Act.,,,

The property of the Appellant Bank cannot be attached or confiscated when there is no illegality or unlawfulness in the title of the Appellant Bank,,,

and there is no charge of money laundering against the Bank. The mortgage of property is the transfer under the Transfer of Property Act as there is,,,

no dispute as regards the origin of funds or the title of the properties. As far as the bank is concerned, the bank had to recover its outstanding dues by",,,

taking over the possession of the mortgaged properties in case the Respondent no 3 to 5 are not able to pay back the credit facilities availed by them,,,

and by way of the SARFAESI provisions these properties are being taken in possession by the Appellant Bank so that recovery can be made from the,,,

accounts which have become NPA.,,,

From the discussion made above, we are of the view that there is no nexus whatsoever between the alleged crime and the Bank who is mortgagee",,,

of the properties in question which were purchased before sanctioning the loan. Thus no case of money-laundering is made out against Bank who has,,,

sanctioned the amount which is untainted and pure money. They have priority right to recover the loan amount/debts by sale of assets over which,,,

security interest is created, which remains unpaid. The Ld. Adjudicating Authority has not appreciated the facts and law involved in the matter and the",,,

primary objective of section 8 of PMLA is that the Adjudicating Authority to take a prima facie view on available material and facts produced. The,,,

contention raised by Mr. N.K. Mata, Advocate has no substance. The provisional attachment in the present matter is bad and against the law.",,,

In view of the aforesaid reasons and our decision, we are not going into other legal issues such as ""reason to believe"", ""retrospective application",,,

provisions of PMLA"" etc.",,,

In the circumstances available in the present case, the allegation of money laundering prima facie, so far as present appellant & properties",,,

involved in this appeal, found to be unsustainable for the purpose of attachment under the PMLA, 2002.",,,

In view of aforesaid facts and circumstances and for reasons referred above, we set aside the Impugned Order dated 27.11.2017 and the",,,

Provisional Attachment Order dated 28.07.2017. The mortgaged properties attached under the PAO 06/2017, so far as, properties concern in this",,,

appeal are released from attachment forthwith.,,,

No costs.,,,