Anosh Ekka & Ors vs Deputy Director Directorate Of Enforcement, Patna

The restoration applications (ROA) filed in all the above appeals which was dismissed earlier vide this bench order dated 07.09.2018 was heard at

length. The following submission was made on behalf of the appellants in all the appeals;

(i) that earlier there was a different lawyer who appeared in these cases and there was no intimation to the appellants that he had withdrawn his

vakalatnama and was not appearing in the cases since July, 2017.

(ii) That Sh. Anosh Ekka, one of the appellants was in jail since August, 2009 to December, 2012 and again from November, 2014 to the present day

and hence he was not in a position to know the happenings / orders of the Tribunal.

(iii) That he got to know when the eviction notice was issued on 13.9.2018.

(iv) That the appellants have not committed any offence and if they have done so they are liable for punishment.

(v) That no sale of the properties which have been attached by the ED has taken place.

(vi) In the interest of justice, the ROA in all the above appeals may be allowed as they have a good case on merits.

In response, the learned counsel for the respondent stated;

(i) That this case cannot be looked in isolation as the offence is in continuation of earlier cases based on the same ECIR.

(ii) The conduct of the appellants in the past has to be seen in order to come to a conclusion in this case. In a related appeal against OC dated

6.12.2010 covering the same ECIR the Tribunal order dated 5.8.2011 granted status quo until the next date of hearing i.e. 19.9.2011. On 19.9.2011,

status quo was ordered to be maintained again till the next dated i.e. 22.11.2011. The Tribunal vide its order dated 19.9.2011 had also directed the

appellants to not to alienate, transfer, lease or create any third party interest in the attached property. On 22.11.2011, the Tribunal directed the

respondent to file paper book within one month and status quo to be maintained in the mean time. Thereafter there has been no order for maintaining

the status quo which expiered on 22.12.2011 i.e. one month of the order dated 22.11.2011.

(iii) In a related case against the same ECIR, the adjudicating authority while passing the order O.C. no. 348 /2014 dated 3.12.2014 has expressed

anguish at the attempt of Sh. Anosh Ekka, one of the appellants in the present case attempting to sell off the properties attached by an earlier order.

The learned counsel for the respondent stated that in fact they have already sold off two properties and the final sale deed registered as per the

intimation received from the ADSR Jalpaiguri, although they were finally attached by the ED and eviction notices issued in those.

(iv) In the present case, the Tribunal had recorded vide its order dated 17.7.2017 as follows: “Sh. Rajeev Awasthi appears on behalf of the

Appellant and submits that he wishes to withdraw his vakalatnama and he has already intimated to his client who shall make necessary arrangement

to represent his caseâ€. That Sh. Rajeev Awasthi, Advocate has been appearing in all the appeals as listed above from time to time prior to

17.07.2017. That the appellants have not challenged the said Tribunal order or filed any review petition. They were therefore very much aware that no

one was representing their case before the Tribunal post 17.7.2017.

(v) On the basis of above, they pleaded that there was no case for restoration of the appeals.

I have carefully considered the ROA applications and also heard both the parties at length. The order of the Tribunal dated 17.7.2017 clearly

mentions that the advocate appearing on behalf of the appellants had withdrawn his vakalatnama and it is recorded that he had already intimated to his

client who shall make necessary arrangement to represent his case. Thereafter the case was fixed for hearing at least on four occasions almost

covering a span of one year, but no one ever appeared. However soon after the case was dismissed for non prosecution on 07.09.2018, it is seen that

the appellants filed the Restoration applications on 24.09.2018, within 17 days of the dismissed order. This does point out the intention of the appellants

of deliberately not appearing on the previous occasions, so that the matter could get prolonged.

The plea of the appellant Sh. Anosh Ekka’s counsel that the appellant was in jail does not hold much ground as there are at least 9-10 other

appellants as listed above who also did not appear and most of them are related to Sh. Anosh Ekka. Even today Sh. Anosh Ekka is in jail as stated by

the counsel for the appellant but nevertheless he has been able to appoint a new lawyer. The conduct of the appellant as brought out by the

respondent and which was not controverted by any documents or evidence especially the fact of selling off the attached properties under PMLA only

points towards the dis-regard of law by the appellants. Justice is qua both the parties. The Supreme Court of India vide its order dated 13.9.2013 in the

case of Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy & Ors (Civil Appeal No. 8183-8184 of 2013) while dealing

with an issue of Condonation of Delay had at para 15 (x)& (xii) stated “if the explanation offered is concocted or the grounds urged in the

application are fanciful, the courts should be vigilant not to expose the other side un-necessarily to face such a litigation….. The entire gamut of facts

are to be carefully scrutinized and the approach should be based on paradigm of judicial discretion which is founded on objective reasoning and not on

individual perceptionâ€​.

On the basis of above discussions and Supreme Court’s ruling I do not find any reason to allow the ROA applications in all the above cases.

All the ROAs are therefore dismissed as rejected.