Indiabulls Housing Finance Ltd. vs Deputy Director, Directorate Of Enforcement, Mumbai & Ors.

G. C. Mishra, Acting Chairman

MP-PMLA-8106/MUM/2021 (Stay) & FPA-PMLA-3877/MUM/2021

The present appeal has been filed u/s 26 of Prevention of Money Laundering Act-2002 against the order dated 01.01.2021 passed by the Adjudicating

Authority in O.C. No. 1329/2020.

During the course of hearing, the ld. senior counsel submits that the appellant has advanced loan to the M/s Bliss Abode Pvt. Ltd. against the

mortgage of the property situated at 40, Amrita Shergil Marg, Lutyens, New Delhi-110003. The said property has become NPA as a result of which

the appellant has issued notice u/s 13(2) of SARFAESI Act-2002 on dated 18.06.2020, whereas the provisional attachment order passed on

09.07.2020. It is further submitted that the appellant has taken possession of the aforesaid property as provided u/s 13(4) of the SARFAESI Act and

that the appellant has not been made a party before the Adjudicating Authority even though it was within the knowledge of the Enforcement

Directorate and the Adjudicating Authority. In this regard the ld. senior counsel has drawn attention of this Tribunal to internal page no. 100 of the

impugned order wherein the Adjudicating Authority has mentioned the loan sanction by the appellant and that advancing of loan lesser than the value

of the property. The ld. senior counsel has relied on the judgment of Hon’ble High court of Delhi in the matter of The Deputy Director,

Directorate of Enforcement vs. Axis Bank and judgments of this Tribunal passed in the matters of Indian Overseas Bank and Syndicate Bank. It is

also submitted that the appellant has a prima facie case and prayed for stay of the impugned order passed by the Adjudicating authority.

On the ld. counsel for the respondent no. 1 Sh. Atul Tripathi, submitted that he is yet to receive the copy of the appeal paper book. However, he

submitted that this Tribunal has already passed conditional order of status quo in the matter of appeal bearing no. FPA-PMLA-3811/MUM/2021 filed

by M/s Bliss Abode Pvt. Ltd. on 27.01.2021 for the same property and that no notice under Rule 8 of The Prevention of Money Laundering (Taking

Possession of Attached or Frozen Properties Confirmed by the Adjudicating Authority) Rule, 2013 and that he will file proper reply to the stay

application.

Heard both side, issue notice. Mr. Atul Tripathi, ld. counsel for the respondent accepts the notice. The ld. counsel for the appellant has agreed to

supply the copy of the appeal paper book to the respondent within two days. The respondent is seeking six weeks time to file the reply to the appeal as

well as stay application, which is not objected. The respondent is granted six weeks time to file the reply to the appeal as well as stay application, in

soft copy as well as hard copy, with an advance copy to the counsel for the appellant. The ld. senior counsel for the appellant submitted that the

appellant will file the rejoinder, in soft copy as well as hard copy, after receipt of the copy of the reply.

It is an admitted fact that the appellant has advanced loan to the borrower M/s Bliss Abode Pvt. Ltd. against the mortgaged of the aforesaid property

and that the appellant has not been made a party in the proceedings before the Adjudicating Authority inspite of having the knowledge of the loan and

the mortgage of the property in question against the loan. Further the appellant had initiated proceedings under section 13 (2) and section 13(4) of the

SARFAESI Act. The property in question is also involved in FPA-PMLA-3878/MUM/2020 and a conditional order of status quo has been passed on

27.01.2021. Further, the respondent no. 1 has not issued any notice u/s 8 (4) of PMLA 2002 r/w Rule 8 of The Prevention of Money Laundering

(Taking Possession of Attached or Frozen Properties Confirmed by the Adjudicating Authority) Rule, 2013. The said rule provide as under:-

“Confirmed attached property hypothecated or mortgaged or pledged to bank, financial institutions, etc.. Where the confirmed attached

property is hypothecated or mortgaged or pledged to any bank, financial institution, etc., the authorised officer shall direct such bank,

financial institution, etc., that such property and any interest or dividend payable thereon shall be retained subject to further orders of the

authorised officer.â€​

Since, conditional order of status quo has already been passed with respect to the aforesaid property in the matter of FPA-PMLA-3878/MUM/2020

filed by M/s Bliss Abode Pvt. Ltd., the borrower, both the parties have no objection if the said conditional order is extended to this appeal also.

In view of the same, both the parties are directed to maintain the status quo with respect to the aforesaid property till the next date of hearing. The

order of status quo is subject to following conditions:

i. Attachment of the property shall continue;

ii. The legal and constructive possession of the property in question shall remain with the Enforcement Directorate;

iii. The appellant is prohibited to create any third party right or dispose of the property in question in any manner;

iv. No encumbrance shall be created by the appellant in respect of the said property.

v. The appellant is directed not to change the nature and character of the property in question.

With the consent of both the parties, list the matter on 26th April, 2021 when the connected matter is already listed.