G. C. Mishra, Acting Chairman
MP-PMLA-8434/DLI/2021 (Exem.)
The appellant has filed application seeking exemption from filing certified copy of the impugned order dated 09.02.2021 passed by the Adjudicating
Authority in Original Complaint (O.C.) No.1340 of 2020. The prayer is considered at this stage and allowed, however, the appellant is 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.
FPA-PMLA-3969/DLI/2021
Fresh appeal has been filed by the appellant under Section 26 of the Prevention of Money Laundering Act, 2002 (‘PMLA’) against the order
dated 09.02.2021 passed by the Adjudicating Authority, New Delhi under PMLA, passed in O.C. No.1340/2020.
Upon hearing, issue notice. Mr. Nitesh Rana, learned counsel accepts notice on behalf of the respondent (ED). The learned counsel for the
respondent seeks four weeks time to file the reply to the appeal, which is not objected. Considered the prayer and the same is allowed. As prayed, the
learned counsel for the respondent is granted four weeks time to file reply to the appeal with advance copy to the other side. The learned counsel for
the appellant has sought two 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.
MP-PMLA-8433/DLI/2021 (Stay), MP-PMLA-8541/DLI/2021 (Stay) & MP-PMLA-8561/DLI/2021 (Stay) In FPA-PMLA-
3969/DLI/2021
Along with the appeal the appellant has filed aforesaid three applications seeking stay on the effect of the impugned order dated 09.02.2021 as well as
to stay of the effect and operation of eviction notices by restraining the respondent (ED) from taking any coercive measures and from taking physical
possession with regard to the issuance of the four eviction notices all dated 22.03.2021 issued by the Respondent (ED) directing the appellant to
vacate following premises within 30 days from the date of receipt of those notices and to hand over the possession of the following properties
peacefully to the respondent (ED).
During the course of hearing, it is submitted by the learned counsel for the appellant that the said Impugned Order dated 09.02.2021 was received by
the appellant on 19.02.2021 and all the four eviction notices dated 22.03.2021 stated to have been served on the appellant. The details of the
immovable properties mentioned in the eviction notices dated 22.03.2021 are as under:
(i) ½ share of 6/14, Shanti Niketan, New Delhi â€"110021
(ii) 1/3 share of B-16, Westend, New Delhi â€" 110021
(iii) 1/18 share of Top Floor 38, Poorvi Marg, Vasant Vihar, New Delhi - 110057
(iv) Unit No.101, 102, 207, Oriental House, Gulmohar Enclave, Commercial Complex, Yusuf Sarai, New Delhi â€" 110049
During the course of hearing, the learned counsel for the appellant has referred to running page no(s).9 & 10 of the appeal paper-book, wherein there
is details of the six properties attached and out of which eviction notices have been issued by the respondent (ED) in respect of properties at serial no.
(i) to (iv) above.
In respect of the first property as mentioned above, it is submitted that the same was purchased jointly in the name of the appellant and his wife Mrs.
Deepa Talwar on dated 23.03.1994 for a consideration of Rs.1,15,00,000/- and being used as residence wherein the appellant and his family members
are residing and that 1/2 share of the joint property is attached.
In respect of the second property as mentioned above, it is contended that the same was purchased jointly in the name of the appellant, his wife Mrs.
Deepa Talwar and his son Mr. Aditya Talwar on 18.01.2014 for a consideration of Rs.72,00,00,000/- (excluding Stamp duty) and 60% of this property
has been paid by way of bank loan from State Bank of India and this property is mortgaged with the Bank and they are paying the EMIs regularly and
that this property is a plot of land.
In respect of the third property as mentioned above, it is submitted that the same was purchased jointly in the name of the appellant, his wife Mrs.
Deepa Talwar and Deepak Talwar & Sons (HUF) vide Separate Agreement to Sale dated 05.12.1994 for a consideration of Rs.26,70,000/-and being
used as residential purpose by the appellant and that 1/8th of the said property is attached even though in the relevant eviction notice 1/18th share has
been shown to have attached and direction of eviction has been issued.
In respect of the fourth property as mentioned above, it is submitted by the learned counsel for the appellant that the said property was purchased vide
three separate registered Sale Deeds dated 01.02.2011 for a consideration of Rs.1,05,19,000/-. This property is used for the office purpose.
During the course of hearing, the learned counsel for the appellant submitted that the period of alleged commission of scheduled offences are during
the period 2012-13 onwards and that all these aforesaid four properties have been attached as a value equivalent to the proceeds of crime. It is
pleaded in the appeal that the payments towards total sale consideration have been made by the appellant through legitimate sources and the alleged
diversion of funds received by the NGO, run by the appellant, from foreign sources has nothing to do with the acquiring of the properties attached
including the aforesaid four properties. During the course of hearing, the learned counsel for the appellant has referred to para 38 at running page
no(s).725 & 726 of the appeal paper-book and submitted that the appellant has a prima facie case for grant of stay of the impugned order dated
09.02.2021 and stay of the operation of the eviction notices dated 22.03.2021
On the aforesaid grounds the appellant is seeking stay on the effect of the impugned order and stay on the operation of the eviction notices dated
22.03.2021.
On the other hand, Mr. Nitesh Rana, learned counsel for the respondent (ED) vehemently raised objection to the submissions made by the
appellant’s counsel and granting of any interim relief in favour of the appellant. He further submitted that there are 6 FIRs, 5 ECIRs lodged
against the appellant and the Income Tax Department has filed 1 complaint.
During the course of hearing, the learned counsel for the respondent has referred to Para 110 at running page no.678 and Para 38 at running page
no(s).725-726 of the appeal paper-book and submitted that the judgment passed in Seema Garg matter is not applicable and that the Special Court
under PMLA has taken cognizance in the prosecution complaint filed under PMLA against the appellant and that he has referred to Para 29 of the
judgment of Hon’ble Supreme Court of India in the matter of Asian Resurfacing of Road Agency Ltd. & Anr. Versus Central Bureau of
Investigation in Criminal Appeal Nos. 1375-1376 of 2013, and submitted that even in civil or a tax cases, it has been laid down that the power to grant
stay has to be exercised with restrain, mere prima facie case is not enough and that the Hon’ble Supreme Court has held that whenever a stay is
granted, a speaking order must be passed showing that the case was of an exceptional nature.
It is also submitted by the learned counsel for the respondent that appropriate order may be passed with respect to the first property which is a
residential property and no relief may be given in respect of other three properties and he has objection to any relief if granted to the appellant with
respect to the properties in question.
Heard both sides on the applications for stay of the impugned order and the applications for stay of the operation of eviction notices dated 22.03.2021.
I have also perused the relevant papers including the impugned order, appeal memo, the order of cognizance passed by Ld. Special Court, the referred
portion of the impugned order and the judgment of Hon’ble Supreme Court of India passed in the Asian Resurfacing (supra).
The proceedings before the Adjudicating Authority is regarding the attachment of the properties and this appeal is a continuation of the attachment
proceedings and the merit of the impugned order passed by the Adjudicating Authority are to be examined at the time of hearing of the appeal.
It is an admitted fact that properties at serial no(s).(i), (ii) & (iii) above are joint properties and that is the reason why these three properties, 1/2, 1/3rd
and 1/8th share of these properties have been attached respectively and that the properties at serial no(s). (i), (iii) & (iv) above have been acquired
much prior to the alleged commission of the scheduled offences and that all the four properties admittedly attached as equivalent to the proceeds of
crime. It is also an admitted fact that the property at serial no.(i) & (iii) are residential properties which have been used as residence by the appellant
and his family members and that the property at serial no.(ii) is a property which has been acquired by getting 60% of the consideration amount as
loan from State Bank of India and it is a plot of land which has been mortgaged with Bank as security and that the property at serial no.(iv) above is
being used as office and that there is no denial from the side of the respondent that the proceeds of crime has been used to acquire these properties.
Merely because cognizance has been taken by the Special Court under PMLA against the appellant, the respondent (ED) cannot be allowed to take
possession at this stage. The very purpose of attachment is to keep the property intact for the purpose of criminal trial under the PMLA, 2002
particularly in the peculiar circumstances of the present case where the properties have been attached as a value equivalent to proceeds of crime
coupled with the fact that three of the properties are joint properties and three of the aforesaid properties have been acquired much prior to the alleged
commission of offence and one of the property, though acquired in 2014, has been mortgaged with the Bank as a security against loan. There is no
pending proceeding before the Adjudicating Authority nor any stay order is granted or is going to be granted to stay the proceedings of any forum.
This is only a case, at this stage, to examine whether any relief can be granted against the eviction notices which are meant for dispossessing the
appellant and his family members and the bank, which has advanced loan.
Therefore, considering all aspects of the appeal including the aforesaid admitted facts, I am of the considered view that the appellant has able to show
a prima facie case for grant of ad-interim order of status quo with respect to aforesaid four properties, against which eviction notices have been
issued, till the next date of hearing. If the eviction notices are allowed to be executed, in the present facts and circumstances of the case, there will be
irreparable injury which cannot be compensated in terms of money. The facts and circumstances are sufficient to state that the balance of
convenience lies in granting the order of status quo with respect to the aforesaid four properties. In view of the above, both the parties are directed to
maintain ‘status quo’ as on today with respect to the aforesaid four properties till the next date of hearing.
The aforesaid order of ad-interim ‘status quo’ is granted subject to the following conditions:-
i. Attachments shall continue.
ii. The legal and constructive possession of the properties in question shall remain with the Enforcement Directorate;
iii. The appellant is prohibited to create any third party right, transfer or dispose of the properties in question in any manner;
iv. Neither party is allowed to alter the nature and character of the properties in question, as on today.
v. No encumbrance shall be created by the appellant in respect of the aforesaid properties.
Respondent (ED) is granted ten days time, as sought, to file the reply to the stay applications with an advance copy to be served on the other side.
List the appeal and applications on 20th May, 2021.
