Indiabulls Housing Finance Ltd vs Joint Director Directorate Of Enforcement, Kolkata

G. C. Mishra, Acting Chairman

MP-PMLA-6642/KOL/2019 (Exem.)

The appellant has filed application seeking exemption from filing certified copy of the impugned order dated 04.10.2019 passed by the Adjudicating

Authority in Original Complaint (O.C.) No.1142 of 2019. The prayer is considered and allowed. The appellant to file the certified copy of the

impugned order by the next date. The application filed for seeking exemption from filing certified copy of the impugned order is disposed of

accordingly.

MP-PMLA-8417/KOL/2021 (Stay) in FPA-PMLA-3330/KOL/2019

The appellant has filed application seeking stay on the operation of the possession notice dated 23.02.2021 issued by the Respondent (ED) under

Section 8(4) of the PML Act, 2002 read with Rule 5(1) of the Prevention of Money-Laundering (Taking Possession of Attached or Frozen Properties

Confirmed by the Adjudicating Authority) Rules, 2013, directing that the property shall be kept intact by all concerned for further proceedings and the

ED is required to take possession of the property i.e. “Flat measuring 1045 sq. ft. at Flat No.: 3F, 3rd Floor, Block-D, 47K, Bhagirthi Lane, R.D.

Ganges View Enclave, PO + PS: Serampore, Hooghly, 712202.â€​ within the stipulated/statutory 10 days period from the date of receipt of the notice.

During the course of hearing, the learned counsel for the appellant inter-alia has contended in the application for stay as well as orally submitted that

the respondent has not yet filed reply to the appeal even after one year of time and the matter is at the stage of pleadings and that the aforesaid

property is given to the appellant as security as it is a mortgaged property and this property is the only security against the loan facilities and if the

execution of the possession notice is not stayed then the appellant shall suffer irreparable loss as the realization of the outstanding amount of the loan

facilities will become very difficult under the provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest

(SARFAESI) Act, 2002.

On the aforesaid grounds the appellant is seeking stay on the operation of the eviction notice dated 23.02.2021.

Upon hearing, issue notice in the application. The learned counsel for the respondent (ED) seeks six weeks time to file the reply to the appeal as well

as to the stay application, which is not objected. Considered the prayer and the same is allowed. The learned counsel for the respondent is granted six

weeks time to file reply to the appeal as well as to the stay application with advance copy to the other side. The learned counsel for the appellant has

sought four weeks time to file rejoinder, if any, after receipt of the copy of the reply to the appeal. The same is also considered and allowed.

On the other hand, the learned counsel for the respondent (ED) vehemently objected to the submissions made by the appellant’s counsel for

granting of any interim relief to the appellant. He inter-alia submitted that this notice is not for taking possession but to retain the property as provided

under Rule 8 of the Prevention of Money-Laundering (Taking Possession of Attached or Frozen Properties Confirmed by the Adjudicating Authority)

Rules, 2013.

Heard both sides and perused the materials available on record. It is the contention of the appellant that the property in question has been mortgaged

with the appellant to secure the loan amount and if the ED is allowed to take the possession of the property, they will face irreparable loss as the loan

amount cannot be recovered.

After considering the submissions made by both the parties and after going through the language of the notice in question, both the parties are directed

to maintain status quo with respect to the property in question till the next date of hearing.

The aforesaid order of ad-interim ‘status quo’ is subject to the following conditions:-

i. Attachments 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, transfer or dispose of the property in question in any manner;

iv. The appellant shall not alter the nature and character of the property in question, as on today.

v. No encumbrance shall be created by the appellant in respect of the aforesaid property.

Respondent (ED) is granted six weeks time to file the reply to the stay application with an advance copy to be served on the other side.

With the consent of both the parties, list the matter on 23rd July, 2021.

The date earlier fixed i.e. 20th May, 2021 vide Office Order dated 29.01.2021 is cancelled.