Praful Patel vs Deputy Director Directorate Of Enforcement

FPA-PMLA-5143-5144/MUM/2022

These two appeals have been filed to challenge the order dated 18.10.2022 passed by the learned Adjudicating Authority on two separate application preferred by the appellant. Since a common order has been passed on the applications, both the appeals were heard together.

The learned counsel submits that two separate applications were filed by the appellant. One application was to seek an opportunity of cross examination of witnesses and the another was to seek a copy of the order where reasons to believe were recorded. Both the applications have been disposed of by the common order without providing an opportunity of hearing by the learned Adjudicating Authority.

In fact, the Adjudicating Authority passed the order after calling reply to the applications and on its filing by the respondent.

Both the parties were not called for the arguments by the learned Authority and accordingly without giving an opportunity of oral arguments, the impugned order has been passed. It deserves to be set aside with remand of the case for passing an order afresh on both the applications after providing an opportunity of oral arguments.

While issuing notice of the appeal on the first date of hearing, the learned counsel for the respondent was granted time to seek instructions.

The learned counsel for the respondent submit that after filing of the applications, a reply to it was filed by the Department to contest both the applications on merit.

However, it is a fact that the parties were not called for hearing by the learned Authority. The order was passed by the Authority after considering the rival pleadings.

In view of the above, if this Tribunal finds a case, it can send the matter back to the Adjudicating Authority to pass an order afresh after  providing an opportunity of oral hearing to the parties. The counsel for the respondent has made aforesaid statement on the instructions from the Department.

We have considered the rival submission of the parties. The facts on the record show that after the Provisional Attachment Order, when the matter was taken up by the Adjudicating Authority, the appellant moved an application to seek an opportunity of cross examination of the witnesses.

The said application has been considered by the Adjudicating Authority after a reply to it by the Department.

The another application was to seek a copy of the order where reasons to believe have been recorded. The said application has also been adjudicated by the common order under challenge.

The challenge to the common order dated 18.10.2022, at the stage is mainly on the ground that an opportunity of oral hearing was not given to the parties, rather referring to the pleadings, the impugned order has been passed. The fact aforesaid has not been disputed by the counsel for the department. He could not therefore oppose the prayer for remand of case for hearing of the applications and passing order afresh.

It goes without saying that whenever the matter is to be decided by the Adjudicating Authority, either on the application or on the provisional attachment order, it is obligatory on part of the Adjudicating Authority to provide an opportunity of oral hearing to the parties. It should not pass the orders without an oral hearing unless party commit default in putting appearance, therefore we find a case for remand of the matter to the Adjudicating Authority for passing an order afresh on both the applications and for that the impugned order under challenge is set aside.

The parties are directed to appear before the Authority on 8th December, 2022 when the matter is otherwise fixed before it.

Both the appeals are disposed of with the aforesaid.