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Judgment
G. C. Mishra, Acting Chairman
MP-PMLA-8122/DLI/2021 (U.L.) in FPA-PMLA-3884/DLI/2021
An urgent application dated 27.01.2021 filed on 28.01.2021 for listing and hearing of the appeal has been filed on the grounds stated therein.
Accordingly, the prayer for urgent listing is considered, allowed and disposed of.
FPA-PMLA-3884/DLI/2021 & MP-PMLA-8123/DLI/2021 (Stay)
Fresh appeal has been filed by the appellant under Section 26 of the Prevention of Money Laundering Act, 2002 (“PMLAâ€) against the order
dated 19.01.2021 passed by the Adjudicating Authority, New Delhi under PMLA, passed in O.A. No.404/2021.
Upon hearing, issue notice. Mr. Nitesh Rana, learned counsel for the respondent (ED) accepts notice.
Along with the appeal the appellant has also filed an application seeking stay of the operation of impugned order dated 19.01.2021.
In the appeal, the appellant has prayed for following reliefs:
(i) Set aside the impugned Order dated 19.01.2021 passed by the Hon’ble Adjudicating Authority in OA No.404/2020;
(ii) Direct the Hon’ble Adjudicating Authority to dispose off the Applications dated 06.01.2021 and 18.01.2021 and/ or supply the
documents sought in the Application dated 06.01.2021;
(iii) Pass such other order as this Hon’ble Tribunal may deem fit.
On perusal of the appeal memo it appears that the main contention of the appellant is that neither any order is passed on the applications dated
06.01.2021 & 18.01.2021 nor these have been disposed of but the O.A. No.404/2020 has been kept for argument on 19.01.2021. During the course of
hearing the learned counsel for the appellant was asked to submit on the maintainability of the appeal as there is no order on the applications dated
06.01.2021 & 18.01.2021 on which directions has been sought from this Appellate Tribunal to the Adjudicating Authority for disposal of aforesaid two
applications. It was also asked to the learned counsel for the appellant as to the illegality in the order dated 19.01.2021.
The learned counsel for the appellant has drawn the attention of this Tribunal to Para 4 of the order dated 19.01.2021 and submitted that there is
illegality in the said order, therefore, section 26(1) of the PMLA, 2002 is attracted and the appeal is maintainable and also submitted that today there is
an order of the Adjudicating Authority on which the appellant is aggrieved. At this stage the appellant is aggrieved on two counts, one is that he has
filed an application on 06.01.2021, which was heard and thereafter another application was filed on 18.01.2021 with a request seeking adjudication of
the pending application first which have a direct bearing on the issue at stage of the final arguments in the present OA. It is also contended that the
appellant have cited the judgment/order dated 21.04.2015 passed by the Honâ€ble High Court at Hyderabad in the matter titled as “Directorate of
Enforcement Vs The Appellate Tribunal (PMLA)†W.P. No.8426 of 2015. On this application also there is no order. While arguing this he has
referred to Para 35 of the rejoinder filed by the Enforcement Directorate before the Adjudicating Authority and thereafter refers to Para 23 of the
application dated 06.01.2021 available at Page No.87 of the appeal paper-book and submitted that he has not been supplied with the documents
mentioned at Para 23 (a) & (c) to (e) and the appellant tried to get remedy by filing applications as mentioned above but no order has been passed
though only one document i.e. copy of the reasons to believe recorded by the Adjudicating Authority under Section 8(1) of the PMLA, 2002 has been
supplied and that by not supplying the rest of the documents, in effect amounts to rejection of his applications and in this regard relied on the
judgment/order recently passed by the Honâ€ble High Court, Delhi on 18.01.2021 in the matter of “Hamilton Houseware Pvt. Ltd. Versus Union
of India & Anr.†in W.P.(C). No.766/2021 & CM APPLs.1926-27/2021 and specifically refers to Para(s) 3 (E), 6 & 7 and he has also referred to
the judgment/order of the Honâ€ble High Court of Judicature at Hyderabad dated 21.04.2015 (supra).
On the basis of aforesaid submissions it is urged by the learned counsel for the appellant that the order dated 19.01.2021 passed by the Adjudicating
Authority is not a concrete order deciding the applications of the appellant and that the order dated 19.01.2021 is an order in terms of the provisions of
section 26 (1) of the PMLA, 2002 as such the appeal is maintainable and since the appeal is maintainable therefore, this Appellate Tribunal has ample
power under Section 35 of the PMLA, 2002 to direct the Adjudicating Authority to decide the applications before proceeding with the case.
On the other hand, the learned counsel for the respondent (ED) strongly raised objection and submitted that at the first instance the appeal is not
maintainable and that the impugned order herein is not an order and is only a proceeding recorded. The appellant, in the garb of proceedings, not of an
order, has filed the present appeal and that the submissions made by the learned counsel for the appellant is without any backing of law. It is further
contended by him that the reasons to believe under section 8(1) of the PMLA, 2002 has already been supplied to the appellant and that during the
course of hearing it was consented by him (counsel for the respondent) as well as by the Adjudicating Authority that let the appellant may file
application under section 21 (2) of the PMLA, 2002 before the ED and all the documents that have been seized would be supplied to the defendant
(appellant) as that is the mandate of law and also right of the appellant and that the judgments/orders relied on by the appellant are not applicable in
the present facts and circumstances of the case. It is further submitted by the learned counsel for the respondent that during the course of hearing the
Adjudicating Authority has categorically stated that all the pending applications of the appellant will be decided with reasoning in the final order.
On the basis of above submissions, the learned counsel for the respondent (ED) submitted that the appeal is not maintainable and therefore, liable to
be dismissed in limine.
Heard both sides. Perused the materials available on record and also the judgments/orders cited and relied on by the appellant. In the present appeal,
the appellant has challenged the order dated 19.01.2021 wherein the Adjudicating Authority without allowing or rejecting the applications of the
appellant dated 06.01.2021 & 18.01.2021 passed the order dated 19.01.2021. From the perusal of the pleadings and what is made out from the
submissions of the appellant are that he is seeking relief from this Appellate Tribunal for a direction to the Adjudicating Authority to decide the
aforesaid applications before proceeding further. The order dated 19.01.2021 is an order fixing the argument of the O.A. No.404/2020 on 25.01.2021
and the O.A. is further adjourned to 01.02.2021 for argument and that admittedly there is no order on the applications dated 06.01.2021 & 18.01.2021.
It appears that the appellant has taken shelter under the garb of the order dated 19.01.2021 to dispose of the applications dated 06.01.2021 &
18.01.2021.
Section 26(1) of the PMLA, 2002 provides as below:
(1) Save as otherwise provided in sub-section (3), the Director or any person aggrieved by an order made by the Adjudicating Authority
under this Act, may prefer an appeal to the Appellate Tribunal.
On a plain reading of the aforesaid provision it is clear that there must be an order of Adjudicating Authority by which the Director or any person
aggrieved may prefer an appeal to the Appellate Tribunal. In fact the order dated 19.01.2021 appears to have been passed on a different context and
by taking shelter of this order dated 19.01.2021 the appellant is trying to get an order on aforesaid two applications which are, admittedly, yet to be
disposed of. That being so, it is held that the order dated 19.01.2021 is not an appealable order to pass any orders on applications which are yet to be
decided. The Appellate Tribunal has no jurisdiction to entertain such an appeal.
I have gone through the judgments/orders relied on by the appellant. The judgment/order passed by the Honâ€ble High Court at Hyderabad has been
passed under Writ Jurisdiction and in Para No(s).2 & 3 of the said order dated 21.04.2015 there is a clear finding which is reproduced below:
“This writ petition has been filed by the petitioner impugning the order of the appellate authority. It appears that the appellate authority
has entertained the appeal against a non-existent order. However, it is contended by respondent No.2 before us that the oral order is as
good as effective as written one to prefer appeal. We are unable to accept this contention. We are of the view that unless an order is passed
in writing, no appeal could be preferred. Appeal can be filed only with a certified copy or copy of the order. Unless written order exists
copy of the same cannot be available. According to us the appeal is nonest factum.
Therefore we set aside the order of the appellate authority, but at the same time we must address the problem.â€
In the aforesaid case before the Honâ€ble High Court at Hyderabad, the fact was that this Appellate Tribunal had entertained the appeal against a
non-existent order of Adjudicating Authority which came under challenge before the Honâ€ble High Court at Hyderabad and the order of the
Appellate Tribunal was set aside and in exercise of the Writ Jurisdiction their Lordships passed the aforesaid order with a direction to the Adjudicating
Authority to decide the application for interim relief made by respondent therein.
The facts and circumstances of the present appeal are distinguishable, hence not applicable.
The appellant has cited another judgment dated 18.01.2021 of Honâ€ble High Court of Delhi at New Delhi in the matter of W.P.(C) 766/2021 & CM
APPLs.1926-27/2021 between Hamilton Houseware Pvt. Ltd. Versus Union of India & Anr., wherein Honâ€ble Her Ladyship has held in Para no.7
that “Merely because of the fact the application was not decided by the authority would not be sufficient ground to entertain the present writ
petition. The same could be a plea that the Petitioner can raise before the PMLA Appellate tribunal as well.â€.
In fact the facts of the judgment of Honâ€ble High Court, Delhi is different in view of the fact that the Adjudicating Authority had passed the final
order and after passing of the final order, the matter was taken to Honâ€ble High Court challenging the final order dated 28.12.2020 and stating
therein that the petitionerâ€s specific application dated 14.12.2020 was neither considered nor disposed of by the Adjudicating Authority. It is not the
case in the present appeal. So, this judgment is not applicable to the facts and circumstances of the appellantâ€s present case/appeal.
The appellant has also relied on the judgment passed by the Honâ€ble High Court Delhi in the matter of J.Sekar Versus Union of India & Ors. and the
judgment passed by the Honâ€ble High Court, Calcutta in the matter of Piyush Kanti Chowdhury Versus State of West Bengal and the judgment
passed by the Honâ€ble Punjab & Haryana High Court at Chandigarh in the matter of Seema Garg Versus Directorate of Enforcement. The facts
and circumstances of these three judgments are not applicable to the present facts and circumstances of the present appeal.
The appellant has also relied on the judgments passed by this Appellate Tribunal in the matters of Satyen Suresh Gathani Versus ED and Allegency
Finlease Pvt. Ltd. & Ors. Versus Directorate of Enforcement and the said judgments are perused. In one of those two judgments the appeals was
preferred against the final order passed by the Adjudicating Authority and the facts of the other case is also distinguishable and are not applicable to
the present facts and circumstances of the present appeal.
In fact, there is no order on the applications against which the appellant is seeking remedy under Section 26(1) of the PMLA, 2002, therefore, no
appeal lies under Section 26(1) to the appeal and is not maintainable, hence dismissed.